EN BANC

[G.R. No. 157013. July 10, 2003.]

ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSIONON ELECTIONS, HON. ALBERTO ROMULO, in his ocialcapacity as Executive Secretary, and HON. EMILIA T.BONCODIN, Secretary of the Department of Budget andManagement, respondents.Pete Quirino-Cuadra and Sixto S. Brilliante, Jr. for petitioner.Henry S. Rojas for Movant-Intervenor.SYNOPSISPetitioner Romulo B. Macalintal, a member of the Philippine Bar, sought todeclare certain provisions of Republic Act No. 9189 entitled, "An Act Providing forA System of Overseas Absentee Voting by Qualied Citizens of the PhilippinesAbroad, Appropriating Funds Therefor, and for Other Purposes" asunconstitutional. Petitioner contended that Section 5(d) is unconstitutionalbecause it violates Section 1, Article V of the 1987 Constitution which requiresthat the voter must be a resident in the Philippines for at least one year and inthe place where he proposes to vote for at least six months immediatelypreceding an election. Petitioner cited the ruling of the Court in Caasi vs. Court ofAppeals to support his claim. In that case, the Court held that a "green card"holder immigrant to the United States is deemed to have abandoned his domicileand residence in the Philippines.The Supreme Court upheld the constitutionality of Section 5(d) of R.A. No. 9189.According to the Court, Section 2 of Article V of the Constitution is an exceptionto the residency requirement found in Section 1 of the same Article. Ordinarily,an absentee is not a resident and vice versa; a person cannot be at the sametime, both a resident and an absentee. However, under existing election laws andthe countless pronouncements of the Court pertaining to elections, an absenteeremains attached to his residence in the Philippines as residence is consideredsynonymous with domicile. Aware of the domiciliary legal tie that links anoverseas Filipino to his residence in this country, the framers of the Constitutionconsidered the circumstances that impelled them to require Congress to establisha system for overseas absentee voting. Thus, Section 2, Article V of theConstitution came into being to remove any doubt as to the inapplicability of theresidency requirement in Section 1. It is precisely to avoid any problems thatcould impede the implementation of its pursuit to enfranchise the largestnumber of qualied Filipinos who are not in the Philippines that theConstitutional Commission explicitly mandated Congress to provide a system foroverseas absentee voting. The Court, however, declared certain provisions of thelaw unconstitutional, namely, portions of Secs. 17.1, 19 and 25, as theyCD Technologies Asia, Inc. 2016

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trampled on the constitutional mandate of independence of the Commission on

Elections. The Court also upheld Section 18.5 of R.A. No. 9189 with respect onlyto the authority given to the COMELEC to proclaim the winning candidates forSenators and party-list representatives but not as to the power to canvass thevotes and proclaim the winning candidates for President and Vice-Presidentwhich is lodged with Congress under Section 4, Article VII of the Constitution.The Court likewise upheld Sec. 5 (d) of the law. It also declared that pursuant toSec. 30 of the law the rest of the provision of said law continues to be in fullforce and eect.SYLLABUS1. POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL REVIEW; RIGHTOF PETITIONER TO FILE PRESENT PETITION, UPHELD; THE CHALLENGEDPROVISION OF LAW INVOLVES A PUBLIC RIGHT THAT AFFECTS A GREAT NUMBEROF CITIZENS AND AN ISSUE OF TRANSCENDENTAL SIGNIFICANCE TO THEFILIPINO PEOPLE. The Court upholds the right of petitioner to le the presentpetition. R.A. No. 9189, entitled, "An Act Providing for A System of OverseasAbsentee Voting by Qualied Citizens of the Philippines Abroad, AppropriatingFunds Therefor, and for Other Purposes," appropriates funds under Section 29thereof which provides that a supplemental budget on the GeneralAppropriations Act of the year of its enactment into law shall provide for thenecessary amount to carry out its provisions. Taxpayers, such as hereinpetitioner, have the right to restrain ocials from wasting public funds throughthe enforcement of an unconstitutional statute. The Court has held that theymay assail the validity of a law appropriating public funds because expenditureof public funds by an ocer of the State for the purpose of executing anunconstitutional act constitutes a misapplication of such funds. The challengedprovision of law involves a public right that aects a great number of citizens.The Court has adopted the policy of taking jurisdiction over cases whenever thepetitioner has seriously and convincingly presented an issue of transcendentalsignicance to the Filipino people. This has been explicitly pronounced inKapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, wherethe Court held: Objections to taxpayers' suit for lack of sucient personalitystanding, or interest are, however, in the main procedural matters. Consideringthe importance to the public of the cases at bar, and in keeping with the Court'sduty, under the 1987 Constitution, to determine whether or not the otherbranches of government have kept themselves within the limits of theConstitution and the laws and that they have not abused the discretion given tothem, the Court has brushed aside technicalities of procedure and has takencognizance of these petitions. Indeed, in this case, the Court may set asideprocedural rules as the constitutional right of surage of a considerable numberof Filipinos is involved.2. ID.; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF 2003(REPUBLIC ACT NO. 9189); ENACTED IN OBEISANCE TO THE MANDATE OF THECONSTITUTION THAT CONGRESS SHALL PROVIDE A SYSTEM FOR VOTING BYQUALIFIED FILIPINOS ABROAD. As the essence of R.A. No. 9189 is toenfranchise overseas qualied Filipinos, it behooves the Court to take a holisticview of the pertinent provisions of both the Constitution and R.A. No. 9189. It isCD Technologies Asia, Inc. 2016

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a basic rule in constitutional construction that the Constitution should be

construed as a whole. In Chiongbian vs. De Leon, the Court held that aconstitutional provision should function to the full extent of its substance and itsterms, not by itself alone, but in conjunction with all other provisions of thatgreat document. Constitutional provisions are mandatory in character unless,either by express statement or by necessary implication, a dierent intention ismanifest. The intent of the Constitution may be drawn primarily from thelanguage of the document itself. Should it be ambiguous, the Court may considerthe intent of is framers through their debates in the constitutional convention.R.A. No. 9189 was enacted in obeisance to the mandate of the rst paragraph ofSection 2, Article V of the Constitution that Congress shall provide a system forvoting by qualied Filipinos abroad. It must be stressed that Section 2 does notprovide for the parameters of the exercise of legislative authority in enacting saidlaw. Hence, in the absence of restrictions, Congress is presumed to have dulyexercised its function as dened in Article VI (The Legislative Department) of theConstitution.3. ID.; ID.; ID.; SECTION 2, ARTICLE V OF THE CONSTITUTION CAME INTO BEINGTO REMOVE DOUBT AS TO THE INAPPLICABILITY OF THE RESIDENCYREQUIREMENT IN SECTION 1. Ordinarily, an absentee is not a resident andvice versa; a person cannot be at the same time, both a resident and anabsentee. However, under our election laws and the countless pronouncementsof the Court pertaining to elections, an absentee remains attached to hisresidence in the Philippines as residence is considered synonymous withdomicile. Aware of the domiciliary legal tie that links an overseas Filipino to hisresidence in this country, the framers of the Constitution considered thecircumstances that impelled them to require Congress to establish a system foroverseas absentee voting. Thus, the Constitutional Commission recognized thefact that while millions of Filipinos reside abroad principally for economic reasonsand hence they contribute in no small measure to the economic uplift of thiscountry, their voices are marginal insofar as the choice of this country's leadersis concerned. The Constitutional Commission realized that under the laws thenexisting and considering the novelty of the system of absentee voting in thisjurisdiction, vesting overseas Filipinos with the right to vote would spawnconstitutional problems especially because the Constitution itself provides for theresidency requirement of voters. Thus, Section 2, Article V of the Constitutioncame into being to remove any doubt as to the inapplicability of the residencyrequirement in Section 1. It is precisely to avoid any problems that could impedethe implementation of its pursuit to enfranchise the largest number of qualiedFilipinos who are not in the Philippines that the Constitutional Commissionexplicitly mandated Congress to provide a system for overseas absentee voting.4. ID.; ID.; ID.; SECTION 2 OF ARTICLE V OF THE CONSTITUTION IS ANEXCEPTION TO THE RESIDENCY REQUIREMENT FOUND IN SECTION 1 OF THESAME ARTICLE. It is clear from these discussions of the members of theConstitutional Commission that they intended to enfranchise as much aspossible all Filipino citizens abroad who have not abandoned their domicile oforigin. The Commission even intended to extend to young Filipinos who reachvoting age abroad whose parents' domicile of origin is in the Philippines, andconsider them qualied as voters for the rst time. It is in pursuance of thatintention that the Commission provided for Section 2 immediately after theCD Technologies Asia, Inc. 2016

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residency requirement of Section 1. By the doctrine of necessary implication in

statutory construction, which may be applied in construing constitutionalprovisions, the strategic location of Section 2 indicates that the ConstitutionalCommission provided for an exception to the actual residency requirement ofSection 1 with respect to qualied Filipinos abroad. The same Commission has ineect declared that qualied Filipinos who are not in the Philippines may beallowed to vote even though they do not satisfy the residency requirement inSection 1, Article V of the Constitution. That Section 2 of Article V of theConstitution is an exception to the residency requirement found in Section 1 ofthe same Article was in fact the subject of debate when Senate Bill No. 2104,which became R.A. No. 9189, was deliberated upon on the Senate oor.

5. ID.; ID.; ID.; EXECUTION OF REQUIRED AFFIDAVIT IS NOT THE ENABLING OR

ENFRANCHISING ACT; AFFIDAVIT MERELY SERVES AS AN EXPLICIT EXPRESSIONTHAT QUALIFIED ABSENTEE HAD NOT IN FACT ABANDONED HIS OR HERDOMICILE OF ORIGIN. Section 4 of R.A. No. 9189 provides for the coverage ofthe absentee voting process. Which does not require physical residency in thePhilippines; and Section 5 of the assailed law which enumerates those who aredisqualied. As nally approved into law, Section 5(d) of R.A. No. 9189specically disqualies an immigrant or permanent resident who is "recognizedas such in the host country" because immigration or permanent residence inanother country implies renunciation of one's residence in his country of origin.However, same Section allows an immigrant and permanent resident abroad toregister as voter for as long as he/she executes an adavit to show that he/shehas not abandoned his domicile in pursuance of the constitutional intentexpressed in Sections 1 and 2 of Article V that "all citizens of the Philippines nototherwise disqualied by law" must be entitled to exercise the right of surageand, that Congress must establish a system for absentee voting; for otherwise, ifactual, physical residence in the Philippines is required, there is no sense for theframers of the Constitution to mandate Congress to establish a system forabsentee voting. Contrary to the claim of petitioner, the execution of theadavit itself is not the enabling or enfranchising act. The adavit required inSection 5(d) is not only proof of the intention of the immigrant or permanentresident to go back and resume residency in the Philippines, but moresignicantly, it serves as an explicit expression that he had not in fact abandonedhis domicile of origin. Thus, it is not correct to say that the execution of theadavit under Section 5(d) violates the Constitution that proscribes "provisionalregistration or a promise by a voter to perform a condition to be qualied to votein a political exercise." To repeat, the adavit is required of immigrants andpermanent residents abroad because by their status in their host countries, theyare presumed to have relinquished their intent to return to this country; thus,without the adavit, the presumption of abandonment of Philippine domicileshall remain.6. ID.; ID.; ID.; THE JURISPRUDENTIAL DECLARATION IN CAASI VS. COURT OFAPPEALS FINDS NO APPLICATION TO THE PRESENT CASE BECAUSE IT DID NOT,FOR OBVIOUS REASONS, CONSIDER THE ABSENTEE VOTING RIGHTS OFFILIPINOS WHO ARE IMMIGRANTS AND PERMANENT RESIDENTS IN THEIR HOSTCOUNTRIES. The jurisprudential declaration in Caasi vs. Court of Appeals thatgreen card holders are disqualied to run for any elective oce nds noCD Technologies Asia, Inc. 2016

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application to the present case because the Caasi case did not, for obviousreasons, consider the absentee voting rights of Filipinos who are immigrants andpermanent residents in their host countries. In the advent of The OverseasAbsentee Voting Act of 2003 or R.A. 9189, they may still be considered as a"qualied citizen of the Philippines abroad" upon fulllment of the requirementsof registration under the new law for the purpose of exercising their right ofsurage. It must be emphasized that Section 5(d) does not only require anadavit or a promise to "resume actual physical permanent residence in thePhilippines not later than three years from approval of his/her registration," theFilipinos abroad must also declare that they have not applied for citizenship inanother country. Thus, they must return to the Philippines; otherwise, theirfailure to return "shall be cause for the removal" of their names "from theNational Registry of Absentee Voters and his/her permanent disqualication tovote in absentia."7. ID.; ID.; ID.; ABSENTEE VOTING PRESUPPOSES THAT THE "QUALIFIED CITIZENOF THE PHILIPPINES ABROAD" IS NOT PHYSICALLY PRESENT IN THE COUNTRY;REQUIRED AFFIDAVIT GIVES THE ABSENTEE AN OPPORTUNITY TO EXPRESSTHAT HE HAS NOT ACTUALLY ABANDONED HIS DOMICILE IN THE PHILIPPINES. Contrary to petitioner's claim that Section 5(d) circumvents the Constitution,Congress enacted the law prescribing a system of overseas absentee voting incompliance with the constitutional mandate. Such mandate expressly requiresthat Congress provide a system of absentee voting that necessarily presupposesthat the "qualied citizen of the Philippines abroad" is not physically present inthe country. The provisions of Sections 5(d) and 11 are components of thesystem of overseas absentee voting established by R.A. No. 9189. The qualiedFilipino abroad who executed the adavit is deemed to have retained hisdomicile in the Philippines. He is presumed not to have lost his domicile by hisphysical absence from this country. His having become an immigrant orpermanent resident of his host country does not necessarily imply anabandonment of his intention to return to his domicile of origin, the Philippines.Therefore, under the law, he must be given the opportunity to express that hehas not actually abandoned his domicile in the Philippines by executing theadavit required by Sections 5(d) and 8(c) of the law.8. ID.; ID.; ID.; BY VESTING ITSELF WITH THE POWERS TO APPROVE, REVIEW,AMEND AND REVISE THE IMPLEMENTING RULES AND REGULATIONS FOR THEOVERSEAS ABSENTEE VOTING ACT OF 2003, CONGRESS WENT BEYOND THESCOPE OF ITS CONSTITUTIONAL AUTHORITY AND TRAMPLED UPON THECONSTITUTIONAL MANDATE OF INDEPENDENCE OF THE COMMISSION ONELECTIONS. The Court has no general powers of supervision over COMELECwhich is an independent body "except those specically granted by theConstitution," that is, to review its decisions, orders and rulings. In the samevein, it is not correct to hold that because of its recognized extensive legislativepower to enact election laws, Congress may intrude into the independence of theCOMELEC by exercising supervisory powers over its rule-making authority. Byvirtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to"issue the necessary rules and regulations to eectively implement theprovisions of this Act within sixty days from the eectivity of this Act." Thisprovision of law follows the usual procedure in drafting rules and regulations toimplement a law the legislature grants an administrative agency the authorityCD Technologies Asia, Inc. 2016

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to craft the rules and regulations implementing the law it has enacted, inrecognition of the administrative expertise of that agency in its particular eld ofoperation. Once a law is enacted and approved, the legislative function is deemedaccomplished and complete. The legislative function may spring back to Congressrelative to the same law only if that body deems it proper to review, amend andrevise the law, but certainly not to approve, review, revise and amend the IRR ofthe COMELEC. By vesting itself with the powers to approve, review, amend, andrevise the IRR for The Overseas Absentee Voting Act of 2003, Congress wentbeyond the scope of its constitutional authority. Congress trampled upon theconstitutional mandate of independence of the COMELEC. Under such a situation,the Court is left with no option but to withdraw from its usual reticence indeclaring a provision of law unconstitutional.9. ID.; ID.; ID.; PROVISION REQUIRING REVIEW AND APPROVAL BY JOINTCONGRESSIONAL OVERSIGHT COMMITTEE OF VOTING BY MAIL IN ANY COUNTRYAFTER THE 2004 ELECTIONS DECLARED UNCONSTITUTIONAL; SAID POWERUNDERMINES THE INDEPENDENCE OF THE COMMISSION ON ELECTIONS. Similarly, the phrase, "subject to the approval of the Congressional OversightCommittee" in the rst sentence of Section 17.1 which empowers theCommission to authorize voting by mail in not more than three countries for theMay, 2004 elections; and the phrase, "only upon review and approval of the JointCongressional Oversight Committee" found in the second paragraph of the samesection are unconstitutional as they require review and approval of voting bymail in any country after the 2004 elections. Congress may not confer uponitself the authority to approve or disapprove the countries wherein voting bymail shall be allowed, as determined by the COMELEC pursuant to the conditionsprovided for in Section 17.1 of R.A. No. 9189. Otherwise, Congress wouldoverstep the bounds of its constitutional mandate and intrude into theindependence of the COMELEC.BELLOSILLO, J., separate concurring opinion:1. POLITICAL LAW; ELECTION LAWS; OVERSEAS ABSENTEE VOTING ACT OF 2003(REPUBLIC ACT NO. 9189); MERE ACQUISITION OF AN IMMIGRANT ORPERMANENT RESIDENT STATUS BY A FILIPINO CITIZEN IN A FOREIGN COUNTRYDOES NOT IPSO JURE RESULT IN THE AUTOMATIC SEVERANCE OF HISDOMICILIARY LINK TO THE PHILIPPINES, NOR THE ACQUISITION OF A NEWDOMICILE OF CHOICE. It has been suggested by certain quarters that allFilipino citizens who are immigrants and permanent residents abroad areconsidered to have abandoned their Philippine domicile and therefore cannot votein Philippine elections, since they are not within the constitutional contemplationof "qualied Filipinos abroad" who are eligible to vote. In this jurisdiction, it iswell settled that "domicile" and "residence" as used in election laws aresynonymous terms which import not only an intention to reside in a xed placebut also personal presence in that place coupled with conduct indicative of thatintention. Domicile is a question of intention and circumstances. There are three(3) rules that must be observed in the consideration of circumstances: rst, thata man must have a residence or domicile somewhere; second, domicile is noteasily lost, once established it is retained until a new one is acquired; and third, aman can have but one residence or domicile at a time. The principal elements ofdomicile, i.e., physical presence in the locality involved and intention to adopt itas a domicile, must concur in order to establish a new domicile. No change ofCD Technologies Asia, Inc. 2016

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domicile will result if either of these elements is absent. Intention to acquire a

domicile without actual residence in the locality does not result in the acquisitionof domicile, nor does the fact of physical presence without intention . The mereacquisition of an immigrant or permanent resident status by a Filipino citizen in aforeign country does not ipso jure result in the automatic severance of hisdomiciliary link to the Philippines, nor the acquisition of a new domicile of choice.

2. ID.; ID.; ID.; ACTUAL AND PHYSICAL RESIDENCE ABROAD SHOULD NOTAUTOMATICALLY BE EQUATED WITH ABANDONMENT OF PHILIPPINE DOMICILE. The diaspora of Filipinos in foreign lands started in the wake of thebludgeoning economic crisis in the 80's and its resulting acute shortage ofemployment opportunities. This phenomenon has continued to the present dayas the steadily rising cost of living and intermittent economic crises worldwidein their eects weighed most heavily on the ordinary Filipino. He does nothave much choice: leave or starve. The lure of the proverbial greener pastures inforeign lands is certainly a potent incentive for an exodus. In most cases, thedecision to migrate is borne out of the dire necessities of life rather than aconscious desire to abandon the land of birth. Most immigrants and permanentresidents remain bound very strongly by intimate ties of lial, racial, cultural andsocial relationships with the Philippines. They travel back periodically to be withtheir friends and loved ones; some even own, maintain and manage theirproperties here; and, they continue to show keen interest in, and keepthemselves abreast with, political and social developments in the countrythrough the mass media. They make signicant contributions to the nation,through their regular dollar remittances that have tremendously shored up oursagging national economy. In the face of these realities, I am convinced morethan ever that actual and physical residence abroad should not automatically beequated with abandonment of Philippine domicile. The circumstancesenumerated in the immediately preceding paragraph are valid indicia of animusmanendi (intent to remain) and animus revertendi (intent to return), whichshould not simply be brushed aside in determining whether the right to voteshould be denied the immigrants and permanent residents. Indeed, there is norhyme nor reason to unduly marginalize this class of Filipinos.3. ID.; ID.; ID.; THE EXECUTION OF THE REQUIRED AFFIDAVIT IS ANAFFIRMATION ON THE PART OF THE IMMIGRANT OR PERMANENT RESIDENTTHAT HIS STAY ABROAD SHOULD NOT BE CONSTRUED AS RELINQUISHMENT OFHIS OLD DOMICILE. It is signicant to stress, however, that Sec. 5, par. (d), oft h e Absentee Voting Law in fact disqualies immigrants and permanentresidents from voting as a general rule. This is precisely in recognition of the factthat their status as such may indeed be a badge of their intent to abandon theirPhilippine domicile and settle permanently in their host country. But at the sametime, the legislature provided for a mechanism in the law for ascertaining realintent: an immigrant or permanent resident who wishes to exercise his right ofsurage is required as a condition sine qua non to execute an adavit declaringthat he shall resume actual, physical and permanent residence in the Philippinesnot later than three (3) years from his registration under the law; and that hehas not applied for citizenship in another country. The law in eect draws adistinction between two (2) classes of immigrants or permanent residents those who have renounced their old domicile in the Philippines, and those whoCD Technologies Asia, Inc. 2016

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still consider the Philippines as their domicile of origin. The execution of theadavit is an armation on the part of the immigrant or permanent residentthat his stay abroad should not be construed as a relinquishment of his olddomicile.4. ID.; ID.; ID.; THE LAW CONTAINS PROPER AND ADEQUATE SAFEGUARDSAGAINST MISUSE OR ABUSE OF THE PRIVILEGE; ABSOLUTE DISQUALIFICATIONOF FILIPINO IMMIGRANTS AND PERMANENT RESIDENTS, WITHOUTDISTINCTION, FROM PARTICIPATING IN THE PHILIPPINE ELECTORAL PROCESSWOULD RESULT, AS IN THE PAST, IN A MASSIVE DISENFRANCHISEMENT OFQUALIFIED VOTERS. I am not unaware of the possibility that the immigrant orpermanent resident may renege or his undertaking in the adavit to resumeactual, physical and permanent residence in the Philippines. But the law containsproper and adequate safeguards against the misuse or abuse of this privilege, i.e.,his name will be purged from the National Registry of Absentee Voters and hewill be permanently disqualied from voting in absentia. As a closingobservation, I wish to emphasize that the absolute disqualication of Filipinoimmigrants and permanent residents, without distinction, from participating inthe Philippine electoral process would invariably result, as in the past, in amassive disenfranchisement of qualied voters. It would be self-defeating in theextreme if the Absentee Voting Law would founder on the rock by reason of anunduly restrictive and decidedly unrealistic interpretation given by the minorityon the residency requirement in the Constitution.VITUG, J., separate opinion:1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF2003 (REPUBLIC ACT NO. 9189); THE INDICATORS USED BY THE LEGISLATUREARE REASONABLE GAUGES TO ESTABLISH THE INTENTION OF THE IMMIGRANTNOT TO ABANDON HIS PHILIPPINE DOMICILE; THE FACT THAT IMMIGRANT HASNOT RELINQUISHED HIS PHILIPPINE CITIZENSHIP SHOULD HELP REMOVE ANYLINGERING DOUBT ON HIS PREFERRED STATUS. The law must haverecognized that animus manendi and animus non revertendi, being processes ofthe mind and incapable of a denitive determination, could only be discernedfrom perceivable circumstances. So also, Republic Act No. 9189 or the "OverseasAbsentee Voting Act of 2003," disqualies an "immigrant or a permanentresident who is recognized as such in the host country" to vote under the Act onthe premise that such a circumstance can be a cogent indication of the holder'sintention to abandon his old domicile and establish a new one. But, in much thesame vein, the law acknowledges that the immigrant or permanent residentmay still be qualied to vote, provided "he executes, upon registration, anadavit prepared for the purpose by the Commission on Elections declaring thathe shall resume actual physical permanent residence in the Philippines not laterthan three (3) years from approval of his registration under (the) Act." Theadavit shall additionally conrm that he has not applied for citizenship inanother country. I am convinced that these indicators used by the legislature arereasonable gauges to establish the intention of the immigrant not to abandon hisPhilippine domicile. The fact that he has not relinquished his Philippinecitizenship should help remove any lingering doubt on his preferred status. Afterall, the right of surage, now widely considered to be an innate right of everynational, is a basic and perhaps the most outstanding mark of citizenship.CD Technologies Asia, Inc. 2016

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2. ID.; ID.; ID.; THE POWER GIVEN TO THE COMMISSION ON ELECTIONS BY

SECTION 18.5 OF THE REPUBLIC ACT NO. 9189 SHOULD BE UNDERSTOOD TOBE LIMITED ONLY TO THE PROCLAMATION OF WINNING CANDIDATES FOR THEPOSITIONS OF SENATORS AND PARTY-LIST REPRESENTATIVES. Section 4 of theAct allows all qualied Filipinos abroad to vote for President, Vice-President,Senators and party-list representatives. In relation to this, Section 18.5empowers the Commission on Election to order the proclamation of winningcandidates. Since it is Congress which has been granted by the Constitution theauthority and duty to canvass the votes and proclaim the winning candidates forpresident and vice-president, I echo the sentiment of my colleagues that thepower given to COMELEC by Section 18.5 of R.A. 9189 should be understood tobe limited only to the proclamation of winning candidates for the positions ofsenators and party-list representatives. The election returns for the positions ofpresident and vice-president should then be certied by the Board of Canvassersto Congress and not to COMELEC as provided for in Section 18.4 of the Act.3. ID.; ID.; ID.; THE ROLE OF THE JOINT CONGRESSIONAL OVERSIGHTCOMMITTEE MUST BE UNDERSTOOD AS BEING LIMITED ONLY TO THEMONITORING AND EVALUATION OF THE IMPLEMENTATION OF THE ACTPURSUANT TO THE POWER OF CONGRESS TO CONDUCT INQUIRIES IN AID OFLEGISLATION. R.A. 9189 creates a Joint Congressional Oversight Committee(JCOC) composed of Senators and Members of the House of Representatives,empowered to "review, revise, amend and approve the Implementing Rules andRegulations (IRR) promulgated by the COMELEC," and to approve the voting bymail in not more than three (3) countries for the May 2004 elections and in anycountry determined by COMELEC. The Court here nds unanimity in holding thatCongress, by vesting itself with the aforesaid powers, has gone beyond the scopeof its constitutional authority. It is a pronouncement that, in my view, can hardlybe susceptible to challenge. The Constitution ordains that constitutionalcommissions such as the COMELEC shall be independent. The COMELEC has theconstitutional authority to "enforce and administer all laws and regulationsrelative to the conduct of an election" and to promulgate its rules of procedure.The role therefore of the JCOC must be understood as being limited only to themonitoring and evaluation of the implementation of the Act pursuant to thepower of Congress to conduct inquiries in aid of legislation.PANGANIBAN, J., separate opinion:1. CONSTITUTIONAL LAW; SUFFRAGE; REASON FOR RESIDENCE REQUIREMENT. I believe that, traditionally, the law requires residence because presence in acertain locality enables a person to know the needs and the problems of thatarea. Equally important, it also makes one become acquainted with thecandidates their qualications, suitability for a particular oce and platform ofgovernment. Thus, the fundamental law requires, not just that there be aminimum of one-year residence in the country, but also that six months of thatperiod be spent in the place where the ballot is to be cast. Such detailedrequirement will hopefully give the voters sucient knowledge about a specictown as to help them choose its local ocials wisely, quite apart fromunderstanding enough of the entire country so as to prepare to vote sagaciouslyfor national leaders. Although the foregoing discussions were used to justify theresidence requirement vis-a-vis candidates for elective public oces, I believethat their rationale can easily and analogically t the needs of voters as well.CD Technologies Asia, Inc. 2016

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2. ID.; ID.; ACTUAL PRESENCE IN THE PHILIPPINES IS NO LONGER

INDISPENSABLE TO MAKE DISCERNING FILIPINOS KNOW THE PROBLEMS OFTHEIR COUNTRY AND TO DECIDE WHO AMONG THE CANDIDATES FOR NATIONALPOSITIONS DESERVE THEIR MANDATE. The dening essence of my position isthis: in the midst of the now available e-age communications facilities, actualpresence in the Philippines is no longer indispensable to make discerning Filipinosknow the problems of their country and to decide who among candidates fornational positions deserve their mandate. Indeed, the Information Age has givenoverseas Filipinos convenient means to inform themselves of our country'sneeds, as well as of the suitability of candidates for national oces. After all,many of them live abroad, not because they want to abandon their land of birth,but because they have been constrained to do so by economic, professional,livelihood and other pressing pursuits. Ineluctably, they remit their hard-earnedmoney to help their relatives here and their country as a whole. Verily, theireasy access to Philippine mass media keep them constantly aware of happeningsin their native country. National dailies and other periodicals are sold regularly inFilipino enclaves in foreign shores. Several local and community publications inthese areas cater mainly to Filipino expatriates, publishing news and opinionsnot only about their alien neighborhoods, but also quite extensively about theirhomeland.3. ID.; ID.; IT WOULD BE THOROUGHLY UNREASONABLE TO EXPECT FOREIGNBASED FILIPINOS TO COME BACK TO THE PHILIPPINES FOR ONE YEAR EVERYTHREE YEARS AND ABANDON THEIR JOBS JUST TO BE ABLE TO COMPLYLITERALLY WITH THE RESIDENTIAL REQUIREMENT OF SUFFRAGE. The e-agehas opened windows to the Philippines in a pervasive and thorough manner,such that actual presence in the country is no longer needed to make anintelligent assessment of whom to vote for as our national leaders. I make thisemphasis on national ocials, because the Absentee Voting Law allows overseasvoting only for President, Vice President, senators and party-list representatives.This distinction is important, because the information available through websitesand other modern media outlets is addressed mainly to national concerns. Toinsist that only those who can demonstrate actual physical residence in thecountry for one year or only those who have complied with the more dicultto-understand concept of domicile would be entitled to vote would be to clingadamantly and unreasonably to a literal interpretation of the Constitutionwithout regard for its more liberating spirit or rationale. Such insistence wouldresult in rendering inutile any meaningful eort to accord surage to Filipinosabroad. Such proposition would make the constitutional interpretationanachronous in the face of the refreshing and pulsating realities of the world. Inmy view, it would be thoroughly unreasonable to expect foreign-based Filipinosto come back here for one year every three years and abandon their jobs just tobe able to comply literally with the residential requirement of surage.CARPIO, J., concurring opinion:1. CONSTITUTIONAL LAW; SUFFRAGE; TO REQUIRE ABSENTEE VOTERS TOCOMPLY WITH THE DOUBLE RESIDENCY REQUIREMENT IS TO IMPOSE ANIMPRACTICAL AND EVEN IMPOSSIBLE CONDITION TO THE EXERCISE OF THECONSTITUTIONAL RIGHT TO VOTE. To require absentee voters to comply withCD Technologies Asia, Inc. 2016

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the double residency requirement is to impose an impractical and even an

impossible condition to the exercise of the constitutional right to vote. In the rstplace, the second residency requirement of establishing residence in a locality inthe Philippines where the voters propose to vote is impossible to comply sinceoverseas Filipinos will obviously not vote in any locality in the Philippines.Imposing the double residency requirement makes the absentee voting an emptyright of overseas Filipinos. Certainly, the wise framers of the Constitution wereincapable of such absurd scheme.2. ID.; ID.; THE CONCEPT OF ABSENTEE VOTING NEGATES A RESIDENCYREQUIREMENT IN THE COUNTRY OF CITIZENSHIP OF THE VOTER; BYDEFINITION AN ABSENTEE VOTER IS A NON-RESIDENT VOTER. The concept ofabsentee voting negates a residency requirement in the country of citizenship ofthe voter. By denition, an absentee voter is a non-resident voter. Obviously, thedouble residency requirement in Section 1 of Article V applies only to resident ornon-absentee Filipino voters. To impose the double residency requirement onabsentee Filipino voters is an egregious anomaly for it will require absenteeFilipino voters to comply with the same residency requirement imposed onresident or non-absentee Filipino voters. If absentee Filipino voters are requiredto reside in the Philippines just like resident or non-absentee Filipino voters, whycreate an absentee voting system for overseas Filipinos in the rst place?Applying the double residency requirement on absentee voters will render theprovision on absentee voting in Section 2 a surplusage, a constitutional mandatedevoid of meaning. Even without the absentee voting provision in Section 1,Congress can validly enact a law allowing resident or non-absentee Filipinovoters those who comply with the double residency requirement to voteabroad in Philippine embassies or consulates. There is no constitutionalprohibition on registered Filipino voters who comply with the double residencyrequirement to cast their ballots at a Philippine embassy or consulate abroadwhere they happen to be on election day. If the absentee voting system inSection 2 were for the benet only of resident or non-absentee Filipinos, thenthere would be no need to provide for it in the Constitution.3. ID.; ID.; THE FRAMERS OF THE 1987 CONSTITUTION INTENDED THEABSENTEE VOTING PROVISION AS AN EXCEPTION TO THE DOUBLE RESIDENCYREQUIREMENT. The framers of the 1987 Constitution specically introducedthe absentee voting provision in Section 2 precisely to enfranchise overseasFilipinos who do not comply with the double residency requirement in Section 1.Without the absentee voting provision in Section 2, Congress could not validlyenact a law enfranchising overseas Filipinos who do not comply with the doubleresidency requirement. As succinctly explained by Commissioner ChristianMonsod during the deliberations in the Constitutional Commission. The framersof the Constitution intended the absentee voting provision as an exception to thedouble residency requirement.4. ID.; ID.; THERE IS NO CONSTITUTIONAL PROVISION AGAINST THEENACTMENT OF LEGISLATION PRESCRIBING THE REACQUISITION OF DOMICILEOR RESIDENCE IN THE PHILIPPINES, JUST AS THERE IS NO CONSTITUTIONALPROVISION AGAINST THE ENACTMENT OF LEGISLATION PRESCRIBING THEREACQUISITION OF PHILIPPINE CITIZENSHIP. The question of how a Filipino,who has become a permanent resident or immigrant in a foreign country, mayreacquire his domicile or residence in the Philippines is a matter for ordinaryCD Technologies Asia, Inc. 2016

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legislation. The reacquisition of the Philippine domicile or residence that a Filipino

had lost is within the power of Congress to legislate. The Constitution does notdene what domicile or residence means. There is also no constitutionalprohibition against the enactment of legislation prescribing the reacquisition ofdomicile or residence in the Philippines, just as there is no constitutionalprohibition against the enactment of legislation prescribing the reacquisition ofPhilippine citizenship. Thus, RA No. 8171 allows a former natural-born Filipinowho became a foreigner to reacquire Philippine citizenship by ling a simpliedadministrative petition and taking an oath of allegiance to the Philippines.Section 5(d) of RA No. 9189, which prescribes the reacquisition of residence by aFilipino through the execution of an adavit stating he is resuming residence inthe Philippines, is similarly well within the power of Congress to enact and isthus constitutional.cdasiajur

5. ID.; ID.; THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

REQUIRES THE PHILIPPINES TO RESPECT THE PEOPLE'S RIGHT OF SUFFRAGE"WITHOUT UNREASONABLE RESTRICTIONS"; TO REQUIRE OVERSEAS FILIPINOSTO RETURN WITHIN 12 MONTHS SO THEY MAY VOTE ABROAD AS ABSENTEEVOTERS IS PLAINLY AN UNREASONABLE RESTRICTION OUTLAWED BY THECOVENANT. The right of surage is the cornerstone of a representativegovernment like that established in the 1987 Constitution. A representativegovernment is legitimate when those represented elect their representatives ingovernment. The consent of the governed is what stamps legitimacy on thosewho govern. This consent is expressed through the right of surage. It is aprecious right for which many have fought and died so that others may freelyexercise it. A government that denies such right on imsy or meaninglessgrounds does so at its peril. The International Covenant on Civil and PoliticalRights, to which the Philippines is a signatory, requires the Philippines to respectthe people's right of surage "without unreasonable restrictions." ThePhilippines is duty bound under international law to comply in good faith with itstreaty obligations under the Covenant. To require overseas Filipinos to return tothe Philippines twice within 12 months so they may vote abroad as absenteevoters is plainly an unreasonable restriction outlawed by the Covenant. Whenthe framers of the Constitution introduced absentee voting in Section 2 of ArticleV, they were aware of the country's obligations under the Covenant. In theirdiscussions on the death penalty, human rights and the Bill of Rights, theframers of the Constitution often referred to the country's obligations under theCovenant. It is inconceivable that the framers intended overseas Filipinos tocomply with the double residency requirement, an unreasonable restriction thatwould patently violate Article 25 of the Covenant and practically negate theoverseas Filipinos' right of surage.

CARPIO MORALES, J., separate opinion:

1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF2003 (REPUBLIC ACT NO. 9189); THE REQUIRED AFFIDAVIT EXECUTED INACCORDANCE WITH THE LAW BY A FILIPINO IMMIGRANT OR PERMANENTRESIDENT OF ANOTHER COUNTRY EXPRESSING HIS INTENT TO RESUMEPHYSICAL PERMANENT RESIDENCE IN THE PHILIPPINES IS AN ELOQUENT PROOFOF HIS INTENTION NOT TO ABANDON HIS DOMICILE OF ORIGIN IN THECD Technologies Asia, Inc. 2016

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PHILIPPINES. It is my view that the adavit executed in accordance with

Section 5(d) of R.A. 9189 by a Filipino immigrant or permanent resident ofanother country expressing his intent to resume physical permanent residence inthe Philippines is an eloquent proof of his intention not to abandon his domicileof origin in the Philippines. It is a statement under oath of what a Filipino seeksto do for the future of his membership in a political community. Why should thisadavit be discredited on the mere speculation that the immigrant might notfulll his undertaking to return to the Philippines for good? If Filipinos who aretemporarily residing in foreign countries are accorded full faith and credit as totheir domiciliary ties no matter how indenite their absence from the Philippines,what more in the case of Filipino immigrants who have formally declared theirintent to settle in their homeland? While he may have stayed on a more or lesspermanent basis in the host country which conferred on him the status of animmigrant and may be animated with all the desire to remain there, until andunless a Filipino immigrant had categorically expressed by words or by deeds hisintent to no longer return to his domicile of origin, no conclusion can be reachedas to a change in domicile from one of origin to one of choice, hence, the olddomicile subsists. For at the core of every Filipino immigrant's being is the fact ofhis Philippine citizenship. He is, after all, still a Filipino.2. ID.; ID.; ID.; UNTIL THE OPPORTUNITY TO EXECUTE THE REQUIRED AFFIDAVITHAS BEEN TOTALLY FOREGONE BY A FILIPINO IMMIGRANT, IN THE ABSENCE OFANY CONCLUSIVE EVIDENCE OF HIS ACQUISITION OF A NEW DOMICILE, THEFILIPINO IMMIGRANT'S DOMICILE OF ORIGIN IS INTACT, HIS PRESENCE ABROADAND HIS DESIRE TO REMAIN THEREIN NOTWITHSTANDING. The acquisition ofa new domicile must be completely perfected by a concurrence of the factum ofremoval to a new locality, the animus to remain there, and abandonment of andintent not to return to the former domicile, for if there is a purpose to return,whether secret or open, no loss or change of domicile will result. Two types ofFilipino immigrants must then be distinguished. The rst, a Filipino who hasopted not to execute the required adavit under Section 5(d) of R.A. 9189, isclearly disqualied to exercise surage for he has manifested the animus nonrevertendi with respect to his domicile in the Philippines, thereby eectuating hisacquisition of a new domicile. The second, a Filipino who declares his wish to bereunited with his homeland has, without doubt, shown that his residence oforigin remained unchanged and so he is entitled to vote under the OverseasAbsentee Voting Law. Therefore, until that opportunity to execute the adavithas been totally foregone by a Filipino immigrant, in the absence of anyconclusive evidence of his acquisition of a new domicile, the Filipino immigrant'sdomicile of origin is intact, his presence abroad and his desire to remain thereinnotwithstanding.AZCUNA, J., concurring opinion:1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF2003 (REPUBLIC ACT NO. 9189); THE ABANDONMENT OF THE PRESENTDOMICILE OF CHOICE, BY THE EXECUTION OF THE AFFIDAVIT, OPERATES TOREVIVE THE DOMICILE OF ORIGIN TO REPLACE IT BECAUSE OF THE PRINCIPLETHAT NO PERSON CAN BE WITHOUT A DOMICILE AT ANYTIME. Petitionercontends that Filipinos who establish permanent residence abroad have therebyabandoned their Philippine domicile of origin and replaced it with a domicile ofchoice in a foreign country. This may indeed be true, but with the execution ofCD Technologies Asia, Inc. 2016

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the adavit provided for under Section 5 (d) aforementioned, the aantexpressly states an abandonment of said domicile of choice. The legal eect ofthis expression is to revive the domicile of origin. For unlike a domicile of choice,which requires both intention and physical presence to be established ormaintained, the domicile of origin can be revived by an intention properlyexpressed. Thus, the abandonment of the present domicile of choice, by theexecution of the adavit, operates to revive the domicile of origin to replace it,because of the principle that no person can be without a domicile at any time.2. ID.; ID.; ID.; THROUGH THE EXECUTION OF THE REQUIREDAFFIDAVIT, THE AFFIANT DOES THE OPERATIVE ACT THAT MAKES HIM ONCEMORE A PHILIPPINE DOMICILIARY; THE REQUIREMENT OF RESUMING ACTUALPHYSICAL PRESENCE WITHIN THREE (3) YEARS IS ONLY TEST OF SUCHINTENTION, BUT IS NOT NEEDED TO EFFECT CHANGE OR REVERSION OFDOMICILE. The moment a foreign domicile is abandoned, the nativedomicile is reacquired. When a person abandons his domicile of choice, hisdomicile of origin immediately reverts and remains until a new domicile ofchoice is established. On the abandonment of a domicile of choice, thedomicile of origin immediately reverts, without regard to any denite intentto return to such original domicile, provided there is a denite intent nally toabandon the acquired domicile of choice. Through the execution of theadavit, the aant does the operative act that makes said aant once morea Philippine domiciliary. The requirement of resuming actual physical presencewithin three (3) years is only a test of such intention, but is not needed toeect the change or reversion of domicile. If the aant does not resume theresidence physically within said period, then the intent expressed in theadavit is defective and the law will deem it inoperative, thereby allowingremoval of aant's name from the National Registry of Absentee Voters.PUNO, J., concurring and dissenting opinion:1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF2003 (REPUBLIC ACT NO. 9189); THE MAJORITY ERRED IN RULING THATSECTION 2 OF ARTICLE V OF THE CONSTITUTION DISPENSED WITH THERESIDENCE REQUIREMENT'S PROVIDED UNDER SECTION 1 OF THE SAMEARTICLE. The intent of the members of the Constitutional Commission toapply the residence requirements to absentee voters is evident from itsdeliberations. They precisely used the phrase "QUALIFIED FILIPINOS ABROAD" tostress that the absentee voter must have all the qualications in Section 1,Article VI of the Constitution. In the course of the deliberations, Fr. Bernasperceived a problem that may arise from the meaning of the second residencerequirement on the place of registration and voting. As noted, a qualied voternormally registers and votes in the place where he is domiciled or has resided forsix months. Fr. Bernas feared that the second residence requirement may pose aconstitutional obstacle to absentee voting "unless the vote of the person who isabsent is a vote which will be considered as cast in the place of his domicile."Following the observation of Father Bernas and to obviate the constitutionalproblem, the members of the Constitutional Commission then discussed thesystem of registration of qualied Filipinos abroad who will be allowed to vote. Itwas agreed that their registration abroad would be considered as registration in aparticular locality in the Philippines where he is domiciled, and the vote castabroad would be considered cast in that particular locality. It is crystal clear fromCD Technologies Asia, Inc. 2016

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the deliberations, that the majority erred in ruling that Section 2 of Article V ofthe Constitution dispensed with the residence requirements provided underSection 1 of the same Article.2. ID.; ID.; ID.; AN "IMMIGRANT" OR A "PERMANENT RESIDENT" OF A FOREIGNCOUNTRY IS DEEMED TO HAVE ABANDONED HIS DOMICILE IN THE PHILIPPINES. In Romualdez-Marcos v. COMELEC, we ruled that domicile of origin is noteasily lost. To successfully eect a change of domicile, one must demonstrate anactual removal or an actual change of domicile; a bona de intention ofabandoning the former place of residence and establishing a new one; and actswhich correspond with purpose. This change of domicile is eected by a Filipinowho becomes an "immigrant" or a "permanent resident" of a foreign country.Thus, we held in Caasi v. Court of Appeals, viz: Miguel's application forimmigrant status and permanent residence in the U.S. and his possession of agreen card attesting to such status are conclusive proof that he is a permanentresident of the U.S. despite his occasional visits to the Philippines. The waiver ofsuch immigrant status should be as indubitable as his application for it. Absentclear evidence that he made an irrevocable waiver of that status or that hesurrendered his green card to the appropriate U.S. authorities before he ran formayor. . . The doctrine in Caasi is by no means new. Our election laws havecontinuously regarded "immigrants" or "permanent residents" of a foreigncountry to have lost their domiciles in the Philippines and hence are not qualiedto run for public oce. There is no reason not to apply the Caasi ruling indisputes involving the qualication of voters. In essence, both cases concernfulllment of the residence requirements. Section 5(d) of Rep. Act No. 9189 itselfreinforces the applicability of the Caasi doctrine. As observed by the majority,Rep. Act No. 9189 disqualies an immigrant or a permanent resident who isrecognized as such in another country "because immigration or permanentresidence in another country implies renunciation of one's residence in hiscountry of origin."3. ID.; ID.; ID.; THE MAJORITY RULING ON THE NATURE OF THE AFFIDAVIT TO BEEXECUTED BY AN "IMMIGRANT" OR A "PERMANENT RESIDENT" ISINCONSISTENT. I submit that the majority ruling on the nature of the adavitto be executed by an "immigrant" or a "permanent resident" is inconsistent. Onone hand, it theorizes that the act "serves as an explicit expression that he hadnot in fact abandoned his domicile of origin." This concedes that while an"immigrant" or a "permanent resident" has acquired a new domicile in a foreigncountry by virtue of his status as such, Rep. Act No. 9189 would consider him notto have abandoned his domicile in the Philippines. On the other hand, themajority also theorizes that the adavit constitutes an "express waiver of hisstatus as an immigrant or permanent resident," and upon fulllment of therequirements of registration, "he may still be considered as a 'qualied citizen ofthe Philippines abroad' for purposes of exercising his right of surage." Thispresupposes that the "immigrant" or "permanent resident" abandoned hisdomicile in the Philippines, but seeks to reacquire this domicile by the executionof the adavit. The rst theory is untenable. Its inevitable result would be theestablishment of two domiciles, i.e., domicile in the Philippines and domicile in aforeign country where he is considered an "immigrant" or a "permanentresident." This ruling will contravene the principle in private international lawthat a person can be domiciled only in one place at a given time. The secondCD Technologies Asia, Inc. 2016

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theory is equally untenable. A person who has abandoned his domicile of originby establishing a domicile of choice cannot just revert back to his domicile oforigin. He must satisfy the same requisites for acquiring a new domicile, i.e., anactual removal or an actual change of domicile; a bona de intention ofabandoning the former place of residence and establishing a new one; and actswhich correspond with the purpose. An existing domicile cannot be lost byabandonment alone, even if there is an intent to acquire a new one; the existingdomicile continues until a new one is in fact gained. To abandon domicile, aperson must choose a new domicile, actually reside in the place chosen, andintend that it be the principal and permanent residence. That is, there can be nochange of domicile without the concurrence of act and intent.

4. ID.; ID.; ID.; THE REQUIRED AFFIDAVIT MERELY PROVES THE INTENT TORETURN BUT NOT THE OTHER REQUISITES FOR RE-ACQUIRING THE DOMICILEOF ORIGIN; WHAT MAKES THE INTENT EXPRESSED IN THE AFFIDAVITEFFECTIVE AND OPERATIVE IS THE FULFILLMENT OF THE PROMISE TO RETURNTO THE PHILIPPINES AND UNTIL THEN, THE ABSENTEE DOES NOT POSSESS THENECESSARY REQUISITES AND THEREFORE, CANNOT BE CONSIDERED AQUALIFIED VOTER. With due respect, I submit that the adavit merely provesthe intent to return but not the other requisites for reacquiring the domicile oforigin. Intent, which is not coupled with actual physical transfer, is not sucienteither to abandon the former domicile or to establish a new domicile. Thus, theview that domicile could be established as soon as the old is abandoned eventhough the person has not yet arrived at the new domicile, has not beenaccepted. To stress, the burden of establishing a change in domicile is upon theparty who asserts it. A person's declarations as to what he considers his home,residence, or domicile are generally admissible "as evidence of his attitude ofmind." However, whatever the context, "their accuracy is suspect because oftheir self-serving nature, particularly when they are made to achieve some legalobjective." In the case at bar, the burden rests on an "immigrant" or a"permanent resident" to prove that he has abandoned his domicile in the foreigncountry and reestablished his domicile in the Philippines. A self-serving adavitwill not suce, especially when what is at stake is a very important privilege asthe right of surage. I respectfully submit that what makes the intent expressedin the adavit eective and operative is the fulllment of the promise to returnto the Philippines. Physical presence is not a mere test of intent but the "principalconrming evidence of the intention of the person." Until such promise isfullled, he continues to be a domiciliary of another country. Until then, he doesnot possess the necessary requisites and therefore, cannot be considered aqualied voter.5. ID.; ID.; ID.; COUNTING THE VOTES OF IMMIGRANTS OR PERMANENTRESIDENTS WHO FAIL TO RETURN TO THE PHILIPPINES WILL DILUTE THE VALIDVOTES OF FULLY QUALIFIED ELECTORS; MAY RESULT IN THE ANOMALY WHERETHE HIGHEST PUBLIC OFFICIALS OF THE LAND WILL OWE THEIR ELECTION TO"IMMIGRANTS" OR "PERMANENT RESIDENTS" WHO FAILED TO FULFILL THEIRPROMISE TO RETURN TO THE COUNTRY OR WHO REPUDIATED THEIR DOMICILEHERE. The only consequence imposed by Rep. Act No. 9189 to an "immigrant"or a "permanent resident" who does not fulll his promise to return to thePhilippines is the removal of his name from the National Registry of AbsenteeCD Technologies Asia, Inc. 2016

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Voters and his permanent disqualication to vote in absentia. But his vote wouldbe counted and accorded the same weight as that cast by bona de qualiedFilipino voters. I respectfully submit that this scheme diminishes the value ofthe right of surage as it dilutes the right of qualied voters to the proportionatevalue of their votes. The one person, one vote principle is sacrosanct in arepublican form of government. The challenged provision which allows the valueof the valid votes of qualied voters to be diminished by the invalid votes ofdisqualied voters violates the sovereignty of our people. The validation by themajority of this unconstitutional provision may result in the anomaly where thehighest public ocials of our land will owe their election to "immigrants" or"permanent residents" who failed to fulll their promise to return to our countryor who repudiated their domicile here.6. ID.; ID.; ID.; SECTION 18.5 OF REPUBLIC ACT NO. 9189 EMPOWERING THECOMMISSION ON ELECTIONS TO PROCLAIM THE WINNING CANDIDATESSHOULD BE CONSTRUED AS LIMITED TO THE POSITIONS OF SENATORS ANDPARTY LIST REPRESENTATIVES. On its face, Section 18.5 of Rep. Act No. 9189appears to be repugnant to Section 4, Article VII of the 1987 Constitution. Itgives the impression that Congress abdicated to COMELEC its constitutional dutyto canvass and proclaim the winning candidates for President and Vice-President.I agree with the majority that the impugned provision should be given areasonable interpretation that would save it from a constitutional inrmity. To besure, Congress could have not allowed the COMELEC to exercise a powerexclusively bestowed upon it by the Constitution. Thus, Section 18.5 of Rep. ActNo. 9189 empowering the COMELEC to proclaim the winning candidates shouldbe construed as limited to the positions of Senators and party-listrepresentatives.7. ID.; ID.; ID.; THE LEGISLATIVE VETO POWER OR CONGRESSIONAL OVERSIGHTPOWER OVER THE AUTHORITY OF THE COMMISSION ON ELECTIONS TO ISSUERULES AND REGULATIONS IN ORDER TO ENFORCE ELECTION LAWS ISUNCONSTITUTIONAL; THE POWER TO PROMULGATE RULES AND REGULATIONSIN ORDER TO ADMINISTER ELECTION LAWS HAS BEEN VESTED EXCLUSIVELY BYTHE 1987 CONSTITUTION TO THE COMMISSION AND IT CANNOT BE TRENCHEDUPON BY CONGRESS IN THE EXERCISE OF ITS OVERSIGHT POWERS. TheConstitution divided the powers of our government into three categories,legislative, executive, and judicial. Although not "hermetically sealed" from oneanother, the powers of the three branches are functionally identiable. In thisrespect, legislative power is generally exercised in the enactment of the law;executive power, in its execution; and judicial power, in its interpretation. In theabsence of specic provision in the Constitution, it is fundamental under theprinciple of separation of powers that one branch cannot exercise or share thepower of the other. In addition, our Constitution created other oces aside fromthe executive, the legislative and the judiciary and dened their powers andprerogatives. Among these bodies especially created by the Constitution itself isthe COMELEC. The COMELEC occupies a distinct place in our scheme ofgovernment. As the constitutional body charged with the administration of ourelection laws, it is endowed with independence in the exercise of some of itspowers and the discharge of its responsibilities. The power to promulgate rulesand regulations in order to administer our election laws belongs to this categoryof powers as this has been vested exclusively by the 1987 Constitution to theCD Technologies Asia, Inc. 2016

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COMELEC. It cannot be trenched upon by Congress in the exercise of its

oversight powers.8. ID.; ID.; ID.; SECTION 17.1 OF REPUBLIC ACT NO. 9189 ISUNCONSTITUTIONAL FOR IT ALLOWS CONGRESS TO NEGATE THE EXCLUSIVEPOWER OF THE COMMISSION ON ELECTIONS TO ADMINISTER AND ENFORCEELECTION LAWS AND REGULATIONS GRANTED BY THE CONSTITUTION ITSELF;SAID POWER IS EXCLUSIVE AND IS NOT MEANT TO BE SHARED BY ANY OTHERBRANCH OR AGENCY OF THE GOVERNMENT. I join the majority in holding thatSection 17.1 of Rep. Act No. 9189 is unconstitutional for it allows Congress tonegate the exclusive power of the COMELEC to administer and enforce electionlaws and regulations granted by the Constitution itself. This is not to maintainthat the Implementing Rules and Regulations promulgated by the COMELEC, orthe system it devised to implement voting by mail cannot be challenged. If theyare illegal or constitute grave abuse of discretion, the courts can strike themdown in an appropriate case. This power is vested to the courts under Section 1,Article VIII of the Constitution dening the scope of judicial power, and morespecically under Section 5, Article VIII empowering this Court to review, revise,reverse, modify or arm on appeal or certiorari, "all cases in which theconstitutionality or validity of any treaty, international or executive agreement,law, presidential decree, proclamation, order, instruction, ordinance, or regulationis in question." Again, this power is exclusive and is not meant to be shared byany other branch or agency of the government.YNARES-SANTIAGO, J., concurring and dissenting opinion:1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF2003 (REPUBLIC ACT NO. 9189); GRANTS THE RIGHT OF SUFFRAGE TO ACATEGORY OF VOTERS WHO DO NOT POSSESS THE CONSTITUTIONALREQUIREMENT OF RESIDENCE; THE MAJORITY OPINION OVERLOOKED THE FACTTHAT WHILE SECTION 2, ARTICLE V OF THE CONSTITUTION PROVIDES A SYSTEMFOR ABSENTEE VOTING, ANY ABSENTEE WHO VOTES MUST FIRST MEET THEQUALIFICATIONS FOUND IN SECTION 1 OF THE SAME ARTICLE. I amconstrained to dissent from the majority opinion because R.A. 9189 grants theright of surage to a category of voters who do not possess the constitutionalrequirement of residence. These are men and women who are still Filipinocitizens but who have voluntarily and unambiguously chosen actual, physical,and permanent residence in a foreign country. In other words, the questioned lawallows non-residents to vote. As phrased, Section 5 (d) of R.A. 9189 grants toFilipinos who are immigrants or permanent residents of another country, andwho are considered as such by their host country, the option to exercise theirright of surage. Proponents of R.A. 9189 are trying to construe Section 2 ofArticle V of the Constitution as a proviso which expands and enlarges the scopeof the preceding section. They overlook the fact that while Section 2 provides asystem for absentee voting, any absentee who votes must rst meet thequalications found in Section 1 of the same article.2. ID.; ID.; ID.; SINCE THE PROVISION ON ABSENTEE VOTING IN REPUBLIC ACTNO. 9189 NEITHER LIMITS NOR ENLARGES A PROVISION OF WHICH IT IS A PART,THE PHRASE "QUALIFIED FILIPINOS ABROAD" CAN BE INTERPRETED ONLY TOMEAN THAT THOSE WHO ARE QUALIFIED TO VOTE UNDER SECTION 1, ARTICLE 4OF THE CONSTITUTION MAY BECOME THE ABSENTEE VOTERS AND MUST,CD Technologies Asia, Inc. 2016

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THEREFORE,POSSESSONELECTIONDAYTHECONSTITUTIONALREQUIREMENTS AS TO CITIZENSHIP, AGE AND RESIDENCE. As stated by thepetitioner, if the framers of the Constitution intended to make Section 2 ofArticle V a proviso or exception to its rst section, they should have added it tothe latter. The Constitution does not make the absentee voting provision a mereproviso of the rst section on residence qualications. Together with the systemwhich secures the secrecy and sanctity of the ballot, the provision on absenteevoting is an entirely distinct and separate section which allows only thosequalied under Section 1 to take advantage of the privilege under Section 2. Theoce of a proviso is to limit the application of a section or provision or to qualifyor restrain its generality. However, a proviso may also enlarge what otherwise isa phrase of limited import had there been no proviso qualifying it. Since theprovision on absentee voting in R.A. 9189 neither limits nor enlarges a provisionof which it is a part, the phrase "qualied Filipinos abroad" can be interpretedonly to mean that those who are qualied to vote under the preceding sectionmay become absentee voters. They must possess on election day theconstitutional requirements as to citizenship, age and residence.

3. ID.; ID.; ID.; MADAM JUSTICE YNARES-SANTIAGO DOES NOT AGREE WITH THEMAJORITY'S BELIEF THAT THE POSITION OF ARTICLE V, SECTION 2 OF THECONSTITUTION IS INDICATIVE OF AN INTENT TO MAKE IT APPEAR TO BE ANEXCEPTION TO THE RESIDENCE REQUIREMENT PROVIDED IN SECTION 1 OF THESAME ARTICLE. It is submitted that a valid and very real distinction existsbetween either of these two groups of Filipinos, on the one hand, and thoseFilipinos who are permanent residents or immigrants in their host countries, onthe other. The key dierence lies in the change of permanent residence or lackthereof, for the framers of our Constitution clearly intended that Filipinos whohad taken up permanent residence in their host countries would be excludedfrom the benets of absentee voting. No other interpretation can be supportedby the records at hand. It is clear that the Constitutional Commission did notintend to make absentee voters an exception to the general rule on residence inthe exercise of the right of surage. We do not agree with the majority's beliefthat the position of Article V, Section 2 of the Constitution is indicative of anintent to make it appear to be an exception to the residence requirementprovided for in the section immediately preceding it. As earlier stated, Section 2is not a proviso of Section 1. It is patent from the excerpts of the deliberations bymembers of the constitutional commissions that the Commissioners took painsto ensure that the reasoning behind Article V, Section 2 of the Constitution wouldnot be misunderstood. They never intended to accord a special status nor givespecial consideration to Filipinos who have become permanent residents of theirhost countries. These necessarily include immigrants.4. ID.; ID.; ID.; "ABSENTEE" REFERS TO THOSE PEOPLE WHOSE INTENT TORETURN HOME AND FORSAKE THE FOREIGN COUNTRY IS CLEAR; IT CANNOTREFER TO IMMIGRANTS AND A MERE PROMISE TO RETURN HOME WITHINTHREE YEARS FROM VOTING IS NO PROOF OF INTENT TO RETURN TO APERMANENT RESIDENCE. I beg to dier from the conclusion in the majorityopinion which states that an absentee remains attached to his residence in thePhilippines because "residence" is synonymous with "domicile." "Absentee" hasto be qualied. It refers only to those people residing abroad whose intent toCD Technologies Asia, Inc. 2016

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return home and forsake the foreign country is clear. It cannot refer toimmigrants. A mere promise to return home within three years from voting is noproof of intent to return to a permanent residence. The sanction for itsenforcement is so feeble that the promise will be an empty one. As earlier stated,an immigrant gives up many things, including the right or opportunity of votingin the Philippines, when he moves with his family abroad. A sanction of futuredisenfranchisement would not bother him in the least bit. In the meantime, theimmigrant vote in closely contested cases may have elected the President, aSenator or a Congressman. Unqualied voters will have swung the elections. Inthe same way that a counterfeit coin drives away or results in the hoarding ofgenuine or good coins, the votes of non-qualied persons will not only weaken ornullify the value of the good votes but may make an election itself sham andmeaningless.SANDOVAL-GUTIERREZ, J., concurring and dissenting opinion:1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF2003 (REPUBLIC ACT NO. 9189); RESIDENCE FOR VOTING IS NOT WHOLLY AQUESTION OF INTENTION, BUT IS A QUESTION OF FACT AND INTENTION. Noperson has more than one domicile at a time. A Filipino immigrant, by hispermanent residency in the host country, loses the Philippines as his domicile.He cannot reacquire it by the mere act of executing an adavit expressing hisintention to return to the Philippines at some future time. Residence for voting isnot wholly a question of intention, but it is a question of fact and intention.Unless his intention is fortied by the concurrent act of reestablishing thePhilippines as his domicile, he cannot be considered a qualied voter under thePhilippine Constitution.2. ID.; ID.; ID.; THE INTENTION OF THE FRAMERS TO LIMIT THE PHRASE"QUALIFIED FILIPINOS ABROAD" TO FILIPINOS TEMPORARILY RESIDING ABROADIS CLEAR AND UNMISTAKABLE; A LAW, SUCH AS REPUBLIC ACT NO. 9189WHICH EXPANDS THE MEANING AS TO INCLUDE THOSE OTHERWISE NOTCOVERED THROUGH THE MERE IMPOSITION OF CERTAIN REQUIREMENTS,"RISKS A DECLARATION OF UNCONSTITUTIONALITY". There is no dispute thatthe 1987 Constitution denies to Filipino immigrants the right of surage. TheFramers had no choice, they had to maintain consistency among the provisionsof the Constitution. Section 1, Article V prescribes residency in the Philippines asone of the qualications for the exercise of the right of surage. Initially, thiswas perceived as an obstacle to the incorporation of the constitutional provisionrequiring Congress to provide for a system of absentee voting by "qualiedFilipinos abroad." However, the Framers resorted to the legal connotation of theterm "residence." They emphasized that "residence" is to be understood not in itscommon acceptance as referring to "dwelling" or "habitation," but rather to"domicile" or "legal residence," that is, the "place where a party actually orconstructively has his permanent home, where he, no matter where he may befound at any given time, eventually intends to return and remain." Thus, as longas the Filipino abroad maintains his domicile in the Philippines, he is considered aqualied voter under the Constitution. Signicantly, at the early stage of thedeliberation, the Framers made it clear that the term "qualied Filipinos abroad"refers only to those whose presence in the foreign country is only "temporary"and whose domicile is still the Philippines thus, denitely excludingimmigrants or permanent residents of a foreign country. Let me quote theCD Technologies Asia, Inc. 2016

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Records of the Constitutional Commission. The intention of the Framers to limit

the phrase "qualied Filipinos abroad" to Filipinos temporarily residing abroad isclear and unmistakable. Therefore, a law, such as R.A. No. 9189, which expandsthe meaning as to include those otherwise not covered (such as Filipinoimmigrants or permanent residents of foreign countries), through the mereimposition of certain requirements, "risks a declaration of unconstitutionality."3. ID.; ID.; ID.; TO RULE THAT A SWORN DECLARATION OF INTENTION ISSUFFICIENT TO ACQUIRE A VOTING RESIDENCE IS TO ESTABLISH A BADPRECEDENT CONSIDERING THAT THE VOTERS CAN CHOOSE THE PLACE WHERETHEY WANT TO VOTE BY SIMPLY SWEARING THAT THEY INTEND TOPERMANENTLY RESIDE THEREIN. Mere declaration that he intends to resumeactual physical permanent residence in the Philippines does not have the eectof conferring upon the immigrant the necessary qualication of "residency" here.To reiterate, residence for voting is not wholly a question of intention, it is aquestion of fact and intention. A voter's statements, declarations, or testimonywith respect to his intention is not controlling, but must be taken in connectionwith his acts and conduct. Hence, the right to vote in a certain place or precinctrequires the occurrence of two things, the act of residing coupled with theintention to do so. In order to constitute a residence for voting purposes, theremust be the intention to reside there for voting purposes, and that intentionmust be accompanied by acts of living, dwelling, lodging, or residing reasonablysucient to establish that it is the real and actual residence of the voter. To rulethat a sworn declaration of intention is sucient to acquire a voting residence isto establish a bad precedent considering that voters can choose the place wherethey want to vote simply by swearing that they intend to permanently residetherein.4. ID.; ID.; ID.; AN IMMIGRANT'S PLAIN DECLARATION OF HIS INTENTIONCANNOT PREVAIL OVER THE ACTUAL FACTS SURROUNDING HIS RESIDENCE. The majority rules that the adavit required in Section 5 (d) "serves as anexplicit expression that the immigrant had not in fact abandoned his domicile oforigin." Again, I cannot subscribe to this view. An immigrant's plain declaration ofhis intention cannot prevail over the actual facts surrounding his residency.Conduct has greater evidential value than a declaration. The fact that a personobtains an immigrant's visa, and not a visitor's or tourist's visa, plainly showsthat his entrance in the foreign country is for a permanent purpose. Indeed,declarations are always subject to the inrmity of any self-serving declarationand may be contradicted by inconsistent acts. When in conict with the facts, adeclared intention to acquire a domicile (or to maintain the domicile of origin)has little weight. Besides, to admit the immigrant's representation that he hasnot abandoned his Philippine domicile despite his immigrant status is to toleratewhat we proscribed in Caasi vs. Court of Appeals, thus: "In other words, he wouldhave this Court believe that he applied for immigration to the U.S. under falsepretenses; that all this time he only had one foot in the United States but kepthis other foot in the Philippines. Even if that were true, this Court will not allowitself to be a party to his duplicity by permitting him to benet from it and givinghim the best of both worlds so to speak." Honoring our countrymen's sworndeclarations to resume permanent residency in the Philippines, notwithstandingtheir immigrant status and the host country's continuous recognition of them assuch, does not speak well of Filipino values. In eect, it encourages duplicitous orCD Technologies Asia, Inc. 2016

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deceptive conduct among our countrymen. We should not allow such acts to bedone behind the host country's back.5. ID.; ID.; ID.; ASSAILED PROVISION MAY ONLY BE AN AVENUE FOR FRAUD. Another ground why I cannot join the majority is the great probability that theassailed provision may only be an avenue for election fraud. Reality wise, ourcountry is yet to achieve a truly clean and honest election. To grant the right ofsurage to the vast number of immigrants in foreign countries where we cannotenforce our laws with the same ecacy as within our territory, is to endangerour citizens' constitutional right to an undeled surage. Paramount in thepreservation of the principles of democratic government is the observance ofprecautionary requirements designed to insure the sanctity of the ballot.Consequently, it is imperative that our elections are not tainted with fraud. Thiscannot be achieved unless we impose stricter terms on the grant of the right ofsurage to absentee citizens. Signicantly, the only sanction imposed by Section5(d) upon an immigrant who fails to perform his promise to resume permanentresidency in the Philippines within the prescribed period is that his name will bestricken from the National Registry of Absentee Voters and he will bepermanently disqualied to vote in absentia. What a punishment for someonewho made a mockery of the election process! This punitive measure is virtuallymeaningless. It cannot undo the result of an election nor can it discipline ordaunt immigrant voters.

6. ID.; ID.; ID.; SECTION 5 (d) OF REPUBLIC ACT NO. 9189 IS

UNCONSTITUTIONAL FOR IT DIMINISHES THE "RESIDENCY REQUIREMENT" OFTHE CONSTITUTION BY INCLUDING WITHIN THE PHRASE "QUALIFIED FILIPINOSABROAD" IMMIGRANTS AND PERMANENT RESIDENTS OF FOREIGN COUNTRIES;SAID PROVISION DEFIES THE CLEAR INTENTION OF THE CONSTITUTION TOLIMIT THE APPLICATION OF THE ABSENTEE VOTING LAW TO FILIPINOS WHO ARE"TEMPORARILY ABROAD." Let it be stressed that where the Constitution xesthe qualications of voters, these qualications cannot be increased, diminishedor changed by legislative enactment, unless the power to do so is expresslygranted, or necessarily implied. The inclusion of the residency requirement in theConstitution is not without reason. It constitutes an invaluable protection againstfraud and further aords some surety that the elector has in fact become amember of the community and that, as such, he has a common interest in allmatters pertaining to its government, and is therefore more likely to exercise hisright intelligently. The specication in the Constitution is an implied prohibitionagainst interference. It is not competent for Congress to diminish or alter suchqualication. Section 5(d) of R.A. No. 9189 is unconstitutional for it diminishesthe "residency requirement" of the Constitution by including within the phrase"qualied Filipinos abroad" immigrants and permanent residents of foreigncountries. It dees the clear intent of the Constitution to limit the application ofthe absentee voting law to Filipinos who are "temporarily abroad." Thus, asstatutes which purport to modify constitutionally xed qualications are void, somust Section 5(d) of R.A. No. 9189 suer the same fate.CALLEJO, SR., J., concurring and dissenting opinion:1. CONSTITUTIONAL LAW;CD Technologies Asia, Inc. 2016

SUFFRAGE;

MR. JUSTICE

CALLEJO DOES

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SUBSCRIBE TO THE VIEW THAT SECTION 2 OF ARTICLE V OF THE CONSTITUTION

WAS INTENDED BY THE FRAMERS TO BE AN EXCEPTION TO THE RESIDENCEQUALIFICATION REQUIREMENT PRESCRIBED IN THE SECTION 1 OF THE SAMEARTICLE. Section 1, Article V which prescribes the qualications of voters as tocitizenship, age and residence is clear and unambiguous. On the other hand,Section 2 of the same article authorizes Congress to provide a system to facilitateabsentee voting by qualied Filipinos abroad. I do not subscribe to the view thatSection 2 was intended by the framers to be an exception to the residencequalication requirement prescribed in the section immediately preceding it.Basic is the rule in statutory construction that the Constitution should beconstrued in such a manner as to give eect to each and every part of the entireinstrument. Courts should lean in favor of a construction that will harmonizeevery provision of the Constitution rather than one which raises conict betweenits provisions, or render inutile any portion thereof. Section 2 can and must beconstrued to contemplate within its terms the enfranchisement only of Filipinoswho possess all the prerequisite qualications specied under Section 1, but whoare abroad and cannot exercise their right to vote in the Philippines on the day ofthe election. Even from a cursory examination of the proceedings of theConstitutional Commission which drafted the 1987 Constitution, the foregoingintendment is made crystal clear.IDcTEA

2. ID.; ID.; DISTINCTION BETWEEN "RESIDENCE" AND "DOMICILE." For many

legal purposes, there is a clear distinction between "residence" and "domicile.""Residence" means living in a particular locality, and simply requires bodilypresence as an inhabitant in a given place, while, "domicile" means living in thatlocality with intent to make it a xed and permanent home. "Residence" denotesthat a person dwells in a given place but "domicile" is a person's legal home, or aplace where the law presumes a person has the intention of permanentlyresiding although he may be absent from it. "Domicile" then is a matter ofintention while "residence" is a physical fact. Hence, a person may have twoplaces of "residence" but only one "domicile." "Residence," however, for thepurpose of voting, is to be understood not in its common acceptation as referringto "dwelling" or "habitation," but rather to "domicile" or legal residence, that is,"the place where a party actually or constructively has his permanent home,where he, no matter where he may be found at any given time, eventuallyintends to return and remain (animus manendi)." In determining a person's"residence" for voting purposes, the following rules are well-established: (a) Aperson must have a residence or domicile somewhere; (b) Where onceestablished, it remains until a new one is acquired; and (c) A person can have butone domicile at a time.3. ID.; ID.; A FILIPINO "IMMIGRANT" OR "PERMANENT RESIDENT," AS THE VERYDESIGNATION OF THE STATUS CLEARLY IMPLIES, IS A FILIPINO WHO HASABANDONED HIS PHILIPPINE RESIDENCE OR DOMICILE, WITH THE INTENTIONOF RESIDING PERMANENTLY IN HIS HOST COUNTRY. Clearly, for votingpurposes, one cannot have a residence or be domiciled in two places at the sametime, for the right to vote in a certain place or precinct requires the concurrenceof two things: the act of residing coupled with the intention to do so. Accordingly,in order to work a change residence for voting, there must be an actual removal,an actual change of domicile, corresponding with a bona de intention ofabandoning the former place of residence and establishing a new one. Hence, anCD Technologies Asia, Inc. 2016

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absence for months or even years, if all the while the party intended it as a meretemporary arrangement, to be followed by a resumption of his former residence,will not be an abandonment of such residence or deprive him of his right to votethereat, the test being the presence or absence of the animus revertendi. Such isthe case overseas Filipino workers who, on account of the nature or exigenciesof their work, fail to be physically present for some time in the Philippines butare not deemed to have abandoned their Philippine domicile by virtue of theirintent to resume residency in the Philippines upon the termination theiremployment contracts. However, the same cannot be said of Filipinos who, whilemaintaining their Filipino citizenship, have in the meantime acquired the statusof immigrants or permanent residents of their respective host countries. Animmigrant, as dened in law, is a person who removes into a country for thepurpose of permanent residence. Therefore, a Filipino "immigrant" or "permanentresident," as the very designation of his status clearly implies, is a Filipino whohas abandoned his Philippine residence or domicile, with the intention of residingpermanently in his host country. Thenceforward, he acquires a new residence inhis host country and is deemed to have abandoned his Philippine domicile. It hasbeen held that where a voter abandons his residence in a state and acquires onein another state, although he afterward changes his intention and returns, hecannot again vote in the state of his former residence or domicile until he hasregained his residence by remaining in the jurisdiction for the statutory period.4. ID.; ID.; WHILE INTENTION IS AN IMPORTANT FACTOR TO BE CONSIDERED INDETERMINING WHETHER OR NOT A RESIDENCE HAS BEEN ACQUIRED,INTENTION ALONE IS INSUFFICIENT TO ESTABLISH A RESIDENCE FOR VOTINGPURPOSES. With due respect to the majority, I do not subscribe to the viewthat the execution of the adavit required under Section 5 (d) is eloquent proofof the fact that the Filipino immigrant has not abandoned his Philippine domicile,as evinced by his intention to go back and resume residency in the Philippines,which thus entitles him to exercise the right of surage pursuant to theconstitutional intent expressed in Section 2, in relation to Section 1, Article V ofour Constitution. The majority view, I humbly submit, is non-sequitur for it iswell-entrenched that while intention is an important factor to be considered indetermining whether or not a residence has been acquired, intention alone isinsucient to establish a residence for voting purposes. Hence, a mere intentionto remove, not consummated, can neither forfeit the party's old domicile norenable him to acquire a new one. And the fact that a person intends to removeat a future time does not of itself defeat his residence before the actually doesremove.5. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF2003 (REPUBLIC ACT NO. 9189); SECTION 5 (d) THEREOF IS VIOLATIVE OF THEEQUAL PROTECTION CLAUSE OF THE CONSTITUTION. I believe that theprovision is violative of the "equal protection" clause of the Constitution. While itallows a Filipino permanently residing in a foreign country to vote on the merepledge that he will again permanently reside in this country within three yearsfrom his voting in the elections, a Filipino permanently residing in the Philippinesbut for less than one year or, in the place where he proposes to vote, for lessthan six months is not allowed to vote. The voter classication sought to beeected by Section 5(d) does not rest on substantial distinctions for it undulyfavors and extends the privilege of the elective franchise to Filipino citizens whoCD Technologies Asia, Inc. 2016

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do not in any way comply with the residency requirement prescribed by ourConstitution, while withholding the same privilege to those who are and havebeen permanent residents of the Philippines, albeit not in the locality or precinctwhere they intend to vote.6. ID.; ID.; ID.; SECTION 18.5 THEREOF DOES NOT PASS THE TEST OFCONSTITUTIONALITY. It is clear from the Article VII, Section 4, paragraph 4 ofthe 1987 Constitution that the power to canvass the votes of the electorate forpresident and vice-president is lodged with Congress. This includes, by expressmandate of the Constitution, the duty to proclaim the winning candidates insuch election. As pointed out in the majority opinion the phrase proclamation ofwinning candidates used in the assailed statute is a sweeping statement, whichthus includes even the winning candidates for the presidency and vicepresidency. Following a basic principle in statutory construction, generali dictumgenaliter est interpretandum (a general statement is understood in a generalsense), the said phrase cannot be construed otherwise. To uphold the assailedprovision of Rep. Act No. 9189 would in eect be sanctioning the grant of apower to the COMELEC, which under the Constitution, is expressly vested inCongress; it would validate a course of conduct that the fundamental law of theland expressly forbids.

DECISIONAUSTRIA-MARTINEZ, J :p

Before the Court is a petition for certiorari and prohibition led by Romulo B.Macalintal, a member of the Philippine Bar, seeking a declaration that certainprovisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003)1 suer from constitutional inrmity. Claiming that he has actual and materiallegal interest in the subject matter of this case in seeing to it that public fundsare properly and lawfully used and appropriated, petitioner led the instantpetition as a taxpayer and as a lawyer.HaTISE

The Court upholds the right of petitioner to le the present petition.

R.A. No. 9189, entitled, "An Act Providing for A System of Overseas AbsenteeVoting by Qualied Citizens of the Philippines Abroad, Appropriating FundsTherefor, and for Other Purposes," appropriates funds under Section 29 thereofwhich provides that a supplemental budget on the General Appropriations Act ofthe year of its enactment into law shall provide for the necessary amount tocarry out its provisions. Taxpayers, such as herein petitioner, have the right torestrain ocials from wasting public funds through the enforcement of anunconstitutional statute. 2 The Court has held that they may assail the validity ofa law appropriating public funds 3 because expenditure of public funds by anocer of the State for the purpose of executing an unconstitutional actconstitutes a misapplication of such funds. 4The challenged provision of law involves a public right that aects a greatCD Technologies Asia, Inc. 2016

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number of citizens. The Court has adopted the policy of taking jurisdiction overcases whenever the petitioner has seriously and convincingly presented an issueof transcendental signicance to the Filipino people. This has been explicitlypronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs.Tan, 5 where the Court held:Objections to taxpayers' suit for lack of sucient personality standing, orinterest are, however, in the main procedural matters. Considering theimportance to the public of the cases at bar, and in keeping with theCourt's duty, under the 1987 Constitution, to determine whether or notthe other branches of government have kept themselves within the limitsof the Constitution and the laws and that they have not abused thediscretion given to them, the Court has brushed aside technicalities ofprocedure and has taken cognizance of these petitions. 6

Indeed, in this case, the Court may set aside procedural rules as theconstitutional right of surage of a considerable number of Filipinos isinvolved.The question of propriety of the instant petition which may appear to be visitedby the vice of prematurity as there are no ongoing proceedings in any tribunal,board or before a government ocial exercising judicial, quasi-judicial orministerial functions as required by Rule 65 of the Rules of Court, dims in light ofthe importance of the constitutional issues raised by the petitioner. In Taada vs.Angara, 7 the Court held:In seeking to nullify an act of the Philippine Senate on the ground that itcontravenes the Constitution, the petition no doubt raises a justiciablecontroversy. Where an action of the legislative branch is seriously allegedto have infringed the Constitution, it becomes not only the right but infact the duty of the judiciary to settle the dispute. "The question thusposed is judicial rather than political. The duty (to adjudicate) remains toassure that the supremacy of the Constitution is upheld." Once a"controversy as to the application or interpretation of constitutionalprovision is raised before this Court (as in the instant case), it becomes alegal issue which the Court is bound by constitutional mandate to decide."

In another case of paramount impact to the Filipino people, it has been

expressed that it is illogical to await the adverse consequences of the law inorder to consider the controversy actual and ripe for judicial resolution. 8 In yetanother case, the Court said that:. . . despite the inhibitions pressing upon the Court when confronted withconstitutional issues, it will not hesitate to declare a law or act invalidwhen it is convinced that this must be done. In arriving at this conclusion,its only criterion will be the Constitution and God as its conscience gives itin the light to probe its meaning and discover its purpose. Personalmotives and political considerations are irrelevancies that cannot inuenceits decisions. Blandishment is as ineectual as intimidation, for all theawesome power of the Congress and Executive, the Court will nothesitate "to make the hammer fall heavily," where the acts of thesedepartments, or of any ocial, betray the people's will as expressed inthe Constitution . . . 9

The need to consider the constitutional issues raised before the Court is furtherCD Technologies Asia, Inc. 2016

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buttressed by the fact that it is now more than fteen years since the raticationof the 1987 Constitution requiring Congress to provide a system for absenteevoting by qualied Filipinos abroad. Thus, strong reasons of public policy demandthat the Court resolves the instant petition 10 and determine whether Congresshas acted within the limits of the Constitution or if it had gravely abused thediscretion entrusted to it. 11The petitioner raises three principal questions:A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration ofvoters who are immigrants or permanent residents in other countries bytheir mere act of executing an adavit expressing their intention toreturn to the Philippines, violate the residency requirement in Section 1 ofArticle V of the Constitution?B. Does Section 18.5 of the same law empowering the COMELEC toproclaim the winning candidates for national oces and party listrepresentatives including the President and the Vice-President violate theconstitutional mandate under Section 4, Article VII of the Constitution thatthe winning candidates for President and the Vice-President shall beproclaimed as winners by Congress?C. May Congress, through the Joint Congressional Oversight Committeecreated in Section 25 of Rep. Act No. 9189, exercise the power to review,revise, amend, and approve the Implementing Rules and Regulations thatthe Commission on Elections shall promulgate without violating theindependence of the COMELEC under Section 1, Article IX-A of theConstitution?

The Court will resolve the questions in seriatim.

A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the1987 Constitution of the Republic of the Philippines?Section 5(d) provides:Sec. 5. Disqualications. The following shall be disqualied from votingunder this Act:xxx xxx xxxd) An immigrant or a permanent resident who is recognized as such inthe host country, unless he/she executes, upon registration, an adavitprepared for the purpose by the Commission declaring that he/she shallresume actual physical permanent residence in the Philippines not laterthan three (3) years from approval of his/her registration under this Act.Such adavit shall also state that he/she has not applied for citizenship inanother country. Failure to return shall be cause for the removal of thename of the immigrant or permanent resident from the National Registryof Absentee Voters and his/her permanent disqualication to vote inabsentia.

Petitioner posits that Section 5(d) is unconstitutional because it violates

Section 1, Article V of the 1987 Constitution which requires that the votermust be a resident in the Philippines for at least one year and in the placewhere he proposes to vote for at least six months immediately preceding anCD Technologies Asia, Inc. 2016

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election. Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals 12to support his claim. In that case, the Court held that a "green card" holderimmigrant to the United States is deemed to have abandoned his domicileand residence in the Philippines.Petitioner further argues that Section 1, Article V of the Constitution does notallow provisional registration or a promise by a voter to perform a condition to bequalied to vote in a political exercise; 13 that the legislature should not beallowed to circumvent the requirement of the Constitution on the right ofsurage by providing a condition thereon which in eect amends or alters theaforesaid residence requirement to qualify a Filipino abroad to vote. 14 He claimsthat the right of surage should not be granted to anyone who, on the date ofthe election, does not possess the qualications provided for by Section 1, ArticleV of the Constitution.Respondent COMELEC refrained from commenting on this issue.

15

In compliance with the Resolution of the Court, the Solicitor General led hiscomment for all public respondents. He contraposes that the constitutionalchallenge to Section 5(d) must fail because of the absence of clear andunmistakable showing that said provision of law is repugnant to theConstitution. He stresses: All laws are presumed to be constitutional; by thedoctrine of separation of powers, a department of government owes a becomingrespect for the acts of the other two departments; all laws are presumed to haveadhered to constitutional limitations; the legislature intended to enact a valid,sensible, and just law.In addition, the Solicitor General points out that Section 1, Article V of theConstitution is a verbatim reproduction of those provided for in the 1935 and the1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House ofRepresentatives 16 wherein the Court held that the term "residence" has beenunderstood to be synonymous with "domicile" under both Constitutions. Hefurther argues that a person can have only one "domicile" but he can have tworesidences, one permanent (the domicile) and the other temporary; 17 and thatthe denition and meaning given to the term residence likewise applies toabsentee voters. Invoking Romualdez-Marcos vs. COMELEC 18 which reiteratesthe Court's ruling in Faypon vs. Quirino, 19 the Solicitor General maintains thatFilipinos who are immigrants or permanent residents abroad may have in factnever abandoned their Philippine domicile. 20

Taking issue with the petitioner's contention that "green card" holders areconsidered to have abandoned their Philippine domicile, the Solicitor Generalsuggests that the Court may have to discard its ruling in Caasi vs. Court ofAppeals 21 in so far as it relates to immigrants and permanent residents inforeign countries who have executed and submitted their adavits conformablywith Section 5(d) of R.A. No. 9189. He maintains that through the execution ofthe requisite adavits, the Congress of the Philippines with the concurrence ofthe President of the Republic had in fact given these immigrants and permanentresidents the opportunity, pursuant to Section 2, Article V of the Constitution, tomanifest that they had in fact never abandoned their Philippine domicile; thatindubitably, they would have formally and categorically expressed the requisiteCD Technologies Asia, Inc. 2016

immigrants and permanent residents abroad possess the unquestionable right toexercise the right of surage under Section 1, Article V of the Constitution uponapproval of their registration, conformably with R.A. No. 9189. 22The seed of the present controversy is the interpretation that is given to thephrase, "qualied citizens of the Philippines abroad" as it appears in R.A. No.9189, to wit:SEC. 2. Declaration of Policy. It is the prime duty of the State toprovide a system of honest and orderly overseas absentee voting thatupholds the secrecy and sanctity of the ballot. Towards this end, theState ensures equal opportunity to all qualied citizens of the Philippinesabroad in the exercise of this fundamental right.SEC. 3. Denition of Terms. For purposes of this Act:a) "Absentee Voting" refers to the process by which qualied citizens ofthe Philippines abroad, exercise their right to vote;. . . (Italics supplied)f) "Overseas Absentee Voter" refers to a citizen of the Philippines who isqualied to register and vote under this Act, not otherwise disqualied bylaw, who is abroad on the day of elections. (Italics supplied)SEC. 4. Coverage. All citizens of the Philippines abroad, who are nototherwise disqualied by law, at least eighteen (18) years of age on theday of elections, may vote for president, vice-president, senators andparty-list representatives. (Italics supplied)

in relation to Sections 1 and 2, Article V of the Constitution which read:

SEC. 1. Surage may be exercised by all citizens of the Philippines nototherwise disqualied by law, who are at least eighteen years of age, andwho shall have resided in the Philippines for at least one year and in theplace wherein they propose to vote for at least six months immediatelypreceding the election. No literacy, property, or other substantiverequirement shall be imposed on the exercise of surage.SEC. 2. The Congress shall provide a system for securing the secrecyand sanctity of the ballot as well as a system for absentee voting byqualied Filipinos abroad.. . . (Italics supplied)

Section 1, Article V of the Constitution specically provides that surage may be

exercised by (1) all citizens of the Philippines, (2) not otherwise disqualied bylaw, (3) at least eighteen years of age, (4) who are residents in the Philippinesfor at least one year and in the place where they propose to vote for at least sixmonths immediately preceding the election. Under Section 5(d) of R.A. No. 9189,one of those disqualied from voting is an immigrant or permanent resident whois recognized as such in the host country unless he/she executes an adavitdeclaring that he/she shall resume actual physical permanent residence in thePhilippines not later than three years from approval of his/her registration undersaid Act.CD Technologies Asia, Inc. 2016

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Petitioner questions the rightness of the mere act of execution of an adavit to

qualify the Filipinos abroad who are immigrants or permanent residents, to vote.He focuses solely on Section 1, Article V of the Constitution in ascribingconstitutional inrmity to Section 5(d) of R.A. No. 9189, totally ignoring theprovisions of Section 2 empowering Congress to provide a system for absenteevoting by qualied Filipinos abroad.A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give theimpression that it contravenes Section 1, Article V of the Constitution. Filipinoimmigrants and permanent residents overseas are perceived as having left andabandoned the Philippines to live permanently in their host countries andtherefore, a provision in the law enfranchising those who do not possess theresidency requirement of the Constitution by the mere act of executing anadavit expressing their intent to return to the Philippines within a given period,risks a declaration of unconstitutionality. However, the risk is more apparentthan real.The Constitution is the fundamental and paramount law of the nation to whichall other laws must conform and in accordance with which all private rights mustbe determined and all public authority administered. 23 Laws that do not conformto the Constitution shall be stricken down for being unconstitutional.Generally, however, all laws are presumed to be constitutional. In Peralta vs.COMELEC, the Court said:. . . An act of the legislature, approved by the executive, is presumed tobe within constitutional limitations. The responsibility of upholding theConstitution rests not on the courts alone but on the legislature as well.The question of the validity of every statute is rst determined by thelegislative department of the government itself. 24

Thus, presumptionconvincingly:

of

constitutionality

of

a law

must

be overcome

. . . To declare a law unconstitutional, the repugnancy of that law to the

Constitution must be clear and unequivocal, for even if a law is aimed atthe attainment of some public good, no infringement of constitutionalrights is allowed. To strike down a law there must be a clear showing thatwhat the fundamental law condemns or prohibits, the statute allows it tobe done. 25

As the essence of R.A. No. 9189 is to enfranchise overseas qualied Filipinos, it

behooves the Court to take a holistic view of the pertinent provisions of both theConstitution and R.A. No. 9189. It is a basic rule in constitutional constructionthat the Constitution should be construed as a whole. In Chiongbian vs. De Leon,26 the Court held that a constitutional provision should function to the full extentof its substance and its terms, not by itself alone, but in conjunction with allother provisions of that great document. Constitutional provisions are mandatoryin character unless, either by express statement or by necessary implication, adierent intention is manifest. 27 The intent of the Constitution may be drawnprimarily from the language of the document itself. Should it be ambiguous, theCourt may consider the intent of its framers through their debates in theconstitutional convention. 28CD Technologies Asia, Inc. 2016

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R.A. No. 9189 was enacted in obeisance to the mandate of the rst paragraph ofSection 2, Article V of the Constitution that Congress shall provide a system forvoting by qualied Filipinos abroad. It must be stressed that Section 2 does notprovide for the parameters of the exercise of legislative authority in enacting saidlaw. Hence, in the absence of restrictions, Congress is presumed to have dulyexercised its function as dened in Article VI (The Legislative Department) of theConstitution.To put matters in their right perspective, it is necessary to dwell rst on thesignicance of absentee voting. The concept of absentee voting is relatively new.It is viewed thus:The method of absentee voting has been said to be completely separableand distinct from the regular system of voting, and to be a new anddierent manner of voting from that previously known, and an exceptionto the customary and usual manner of voting. The right of absentee anddisabled voters to cast their ballots at an election is purely statutory;absentee voting was unknown to, and not recognized at, the commonlaw.Absentee voting is an outgrowth of modern social and economicconditions devised to accommodate those engaged in military or civil lifewhose duties make it impracticable for them to attend their polling placeson the day of election, and the privilege of absentee voting may ow fromconstitutional provisions or be conferred by statutes, existing in somejurisdictions, which provide in varying terms for the casting and receptionof ballots by soldiers and sailors or other qualied voters absent onelection day from the district or precinct of their residence.Such statutes are regarded as conferring a privilege and not a right, or anabsolute right. When the legislature chooses to grant the right by statute,it must operate with equality among all the class to which it is granted;but statutes of this nature may be limited in their application to particulartypes of elections. The statutes should be construed in the light of anyconstitutional provisions aecting registration and elections, and with dueregard to their texts prior to amendment and to predecessor statutesand the decisions thereunder; they should also be construed in the lightof the circumstances under which they were enacted; and so as to carryout the objects thereof, if this can be done without doing violence to theirprovisions and mandates. Further, in passing on statutes regulatingabsentee voting, the court should look to the whole and every part of theelection laws, the intent of the entire plan, and reasons and spirit of theiradoption, and try to give eect to every portion thereof. 29 (Italicssupplied)

Ordinarily, an absentee is not a resident and vice versa; a person cannot be at thesame time, both a resident and an absentee. 30 However, under our election lawsand the countless pronouncements of the Court pertaining to elections, anabsentee remains attached to his residence in the Philippines as residence isconsidered synonymous with domicile.

In Romualdez-Marcos, 31 the Court enunciated:

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Article 50 of the Civil Code decrees that "[f]or the exercise of civil rightsand the fulllment of civil obligations, the domicile of natural persons istheir place of habitual residence." In Ong vs. Republic, this court took theconcept of domicile to mean an individual's "permanent home," "a place towhich, whenever absent for business or for pleasure, one intends toreturn, and depends on facts and circumstances in the sense that theydisclose intent." Based on the foregoing, domicile includes the twinelements of "the fact of residing or physical presence in a xed place" andanimus manendi, or the intention of returning there permanently.Residence, in its ordinary conception, implies the factual relationship of anindividual to a certain place. It is the physical presence of a person in agiven area, community or country. The essential distinction betweenresidence and domicile in law is that residence involves the intent to leavewhen the purpose for which the resident has taken up his abode ends.One may seek a place for purposes such as pleasure, business, orhealth. If a person's intent be to remain, it becomes his domicile; if hisintent is to leave as soon as his purpose is established it is residence. It isthus, quite perfectly normal for an individual to have dierent residencesin various places. However, a person can only have a single domicile,unless, for various reasons, he successfully abandons his domicile in favorof another domicile of choice. In Uytengsu vs. Republic, we laid thisdistinction quite clearly:"There is a dierence between domicile and residence. 'Residence' isused to indicate a place of abode, whether permanent ortemporary; 'domicile' denotes a xed permanent residence towhich, when absent, one has the intention of returning. A man mayhave a residence in one place and a domicile in another. Residenceis not domicile, but domicile is residence coupled with the intentionto remain for an unlimited time. A man can have but one domicilefor the same purpose at any time, but he may have numerousplaces of residence. His place of residence is generally his place ofdomicile, but it is not by any means necessarily so since no lengthof residence without intention of remaining will constitute domicile."For political purposes the concepts of residence and domicile are dictatedby the peculiar criteria of political laws. As these concepts have evolved inour election law, what has clearly and unequivocally emerged isthe fact that residence for election purposes is usedsynonymously with domicile. 32 (Emphasis and italics supplied)

Aware of the domiciliary legal tie that links an overseas Filipino to his residencein this country, the framers of the Constitution considered the circumstancesthat impelled them to require Congress to establish a system for overseasabsentee voting, thus:MR. OPLE. With respect to Section 1, it is not clear whether the right ofsurage, which here has a residential restriction, is not denied to citizenstemporarily residing or working abroad. Based on the statistics of severalgovernment agencies, there ought to be about two million such Filipinosat this time. Commissioner Bernas had earlier pointed out that theseprovisions are really lifted from the two previous Constitutions of 1935and 1973, with the exception of the last paragraph. They could nottherefore have foreseen at that time the phenomenon now described asCD Technologies Asia, Inc. 2016

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the Filipino labor force explosion overseas.

According to government data, there are now about 600,000 contractworkers and employees, and although the major portions of theseexpatriate communities of workers are to be found in the Middle East,they are scattered in 177 countries in the world.In a previous hearing of the Committee on Constitutional Commissionsand Agencies, the Chairman of the Commission on Elections, RamonFelipe, said that there was no insuperable obstacle to making eective theright of surage for Filipinos overseas. Those who have adhered to theirFilipino citizenship notwithstanding strong temptations are exposed toembrace a more convenient foreign citizenship. And those who on theirown or under pressure of economic necessity here, nd that they haveto detach themselves from their families to work in other countries withdenite tenures of employment. Many of them are on contractemployment for one, two, or three years. They have no intention ofchanging their residence on a permanent basis, but are technicallydisqualied from exercising the right of surage in their countries ofdestination by the residential requirement in Section 1 which says:Surage shall be exercised by all citizens of the Philippinesnot otherwise disqualied by law, who are eighteen years ofage or over, and who shall have resided in the Philippinesfor at least one year and in the place wherein they proposeto vote for at least six months preceding the election.I, therefore, ask the Committee whether at the proper time they mightentertain an amendment that will make this exercise of the right to voteabroad for Filipino citizens an eective, rather than merely a nominal rightunder this proposed Constitution.FR. BERNAS. Certainly, the Committee will consider that. But more thanjust saying that, I would like to make a comment on the meaning of"residence" in the Constitution because I think it is a concept that hasbeen discussed in various decisions of the Supreme Court, particularly inthe case of Faypon vs. Quirino, a 1954 case which dealt precisely with themeaning of "residence" in the Election Law. Allow me to quote:A citizen may leave the place of his birth to look for greenerpastures, as the saying goes, to improve his lot and that, ofcourse, includes study in other places, practice of hisavocation, reengaging in business. When an election is tobe held, the citizen who left his birthplace to improve his lotmay decide to return to his native town, to cast his ballot,but for professional or business reasons, or for any otherreason, he may not absent himself from the place of hisprofessional or business activities.So, they are here registered as voters as he has thequalications to be one, and is not willing to give up or losethe opportunity to choose the ocials who are to run thegovernment especially in national elections. Despite suchregistration, the animus revertendi to his home, to hisdomicile or residence of origin has not forsaken him.CD Technologies Asia, Inc. 2016

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This may be the explanation why the registration of a voter in a place

other than his residence of origin has not been deemed sucient toconsider abandonment or loss of such residence of origin.In other words, "residence" in this provision refers to two residencequalications: "residence" in the Philippines and "residence" in the placewhere he will vote. As far as residence in the Philippines is concerned, theword "residence" means domicile, but as far as residence in the placewhere he will actually cast his ballot is concerned, the meaning seems tobe dierent. He could have a domicile somewhere else and yet he is aresident of a place for six months and he is allowed to vote there. So thatthere may be serious constitutional obstacles to absentee voting, unlessthe vote of the person who is absent is a vote which will be considered ascast in the place of his domicile.MR. OPLE. Thank you for citing the jurisprudence.It gives me scant comfort thinking of about two million Filipinos whoshould enjoy the right of surage, at least a substantial segment of theseoverseas Filipino communities. The Committee, of course, is aware thatwhen this Article of the Constitution explicitly and unequivocally extendsthe right of eective surage to Filipinos abroad, this will call for a logisticalexercise of global proportions. In eect, this will require budgetary andadministrative commitments on the part of the Philippine government,mainly through the COMELEC and the Ministry of Foreign Aairs, andperhaps, a more extensive elaboration of this mechanism that will be putin place to make eective the right to vote. Therefore, seeking shelterin some wise jurisprudence of the past may not be sucient tomeet the demands of the right of surage for Filipinos abroadthat I have mentioned. But I want to thank the Committee for saying thatan amendment to this eect may be entertained at the proper time. . . . 33(Emphasis and Italics Supplied)

Thus, the Constitutional Commission recognized the fact that while millions ofFilipinos reside abroad principally for economic reasons and hence theycontribute in no small measure to the economic uplift of this country, their voicesare marginal insofar as the choice of this country's leaders is concerned.The Constitutional Commission realized that under the laws then existing andconsidering the novelty of the system of absentee voting in this jurisdiction,vesting overseas Filipinos with the right to vote would spawn constitutionalproblems especially because the Constitution itself provides for the residencyrequirement of voters:MR. REGALADO. Before I act on that, may I inquire from CommissionerMonsod if the term "absentee voting" also includes transient voting;meaning, those who are, let us say, studying in Manila need not go backto their places of registration, for instance, in Mindanao, to cast theirvotes.MR. MONSOD. I think our provision is for absentee voting by Filipinosabroad.MR. REGALADO. How about those people who cannot go back to theplaces where they are registered?CD Technologies Asia, Inc. 2016

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MR. MONSOD. Under the present Election Code, there are provisions forallowing students and military people who are temporarily in anotherplace to register and vote. I believe that those situations can be coveredby the Omnibus Election Code. The reason we want absenteevoting to be in the Constitution as a mandate to the legislatureis that there could be inconsistency on the residence rule if itis just a question of legislation by Congress. So, by allowing itand saying that this is possible, then legislation can take careof the rest. 34 (Emphasis and Italics supplied)

Thus, Section 2, Article V of the Constitution came into being to remove anydoubt as to the inapplicability of the residency requirement in Section 1. It isprecisely to avoid any problems that could impede the implementation of itspursuit to enfranchise the largest number of qualied Filipinos who are not inthe Philippines that the Constitutional Commission explicitly mandatedCongress to provide a system for overseas absentee voting.The discussion of the Constitutional Commission on the eect of the residencyrequirement prescribed by Section 1, Article V of the Constitution on theproposed system of absentee voting for qualied Filipinos abroad is enlightening:MR. SUAREZ. May I just be recognized for a clarication. There are certainqualications for the exercise of the right of surage like having resided inthe Philippines for at least one year and in the place where they proposeto vote for at least six months preceding the elections. What is the eectof these mandatory requirements on the matter of the exercise of theright of surage by the absentee voters like Filipinos abroad?THE PRESIDENT. Would Commissioner Monsod care to answer?MR. MONSOD. I believe the answer was already given by CommissionerBernas, that the domicile requirements as well as the qualications anddisqualications would be the same.THE PRESIDENT. Are we leaving it to the legislature to devise the system?FR. BERNAS. I think there is a very legitimate problem raised there.THE PRESIDENT. Yes.MR. BENGZON. I believe Commissioner Suarez is claried.FR. BERNAS. But I think it should be further claried with regard to theresidence requirement or the place where they vote in practice; theunderstanding is that it is exible. For instance, one might be a resident ofNaga or domiciled therein, but he satises the requirement of residence inManila, so he is able to vote in Manila.MR. TINGSON. Madam President, may I then suggest to the Committee tochange the word "Filipinos" to QUALIFIED FILIPINO VOTERS. Instead of"VOTING BY FILIPINOS ABROAD," it should be QUALIFIED FILIPINOVOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD,would that not satisfy the requirement?THE PRESIDENT. What does Commissioner Monsod say?CD Technologies Asia, Inc. 2016

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MR. MONSOD. Madam President, I think I would accept the phrase

"QUALIFIED FILIPINOS ABROAD" because "QUALIFIED" would assumethat he has the qualications and none of the disqualications to vote.MR. TINGSON. That is right. So does the Committee accept?FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?THE PRESIDENT. Does the Committee accept the amendment?MR. REGALADO. Madam President.THE PRESIDENT. Commissioner Regalado is recognized.MR. REGALADO. When Commissioner Bengzon asked me to read myproposed amendment, I specically stated that the National Assemblyshall prescribe a system which will enable qualied citizens, temporarilyabsent from the Philippines, to vote. According to Commissioner Monsod,the use of the phrase "absentee voting" already took that into account asits meaning. That is referring to qualied Filipino citizens temporarilyabroad.MR. MONSOD. Yes, we accepted that. I would like to say that with respectto registration we will leave it up to the legislative assembly, for example,to require where the registration is. If it is, say, members of the diplomaticcorps who may be continuously abroad for a long time, perhaps, therecan be a system of registration in the embassies. However, we do not liketo preempt the legislative assembly.THE PRESIDENT. Just to clarify, Commissioner Monsod's amendment isonly to provide a system.MR. MONSOD. Yes.THE PRESIDENT. The Commissioner is not stating here that he wants newqualications for these absentee voters.MR. MONSOD. That is right. They must have the qualications and noneof the disqualications.THE PRESIDENT. It is just to devise a system by which they can vote.MR. MONSOD. That is right, Madam President.

35

(Italics supplied)

Clearly therefrom, the intent of the Constitutional Commission is to entrust to

Congress the responsibility of devising a system of absentee voting. Thequalications of voters as stated in Section 1 shall remain except for theresidency requirement. This is in fact the reason why the ConstitutionalCommission opted for the term qualied Filipinos abroad with respect to thesystem of absentee voting that Congress should draw up. As stressed byCommissioner Monsod, by the use of the adjective qualied with respect toFilipinos abroad, the assumption is that they have the "qualications and none ofthe disqualications to vote." In ne-tuning the provision on absentee voting, theConstitutional Commission discussed how the system should work:MR. SUAREZ. For clarication purposes, we just want to state for therecord that in the case of qualied Filipino citizens residing abroad andCD Technologies Asia, Inc. 2016

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exercising their right of surage, they can cast their votes for thecandidates in the place where they were registered to vote in thePhilippines. So as to avoid any complications, for example, if they areregistered in Angeles City, they could not vote for a mayor in Naga City.In other words, if that qualied voter is registered in Angeles City, then hecan vote only for the local and national candidates in Angeles City. I justwant to make that clear for the record.MR. REGALADO. Madam President.THE PRESIDENT. What does Commissioner Regalado say?MR. REGALADO. I just want to make a note on the statement ofCommissioner Suarez that this envisions Filipinos residing abroad. Theunderstanding in the amendment is that the Filipino is temporarily abroad.He may not be actually residing abroad; he may just be there on abusiness trip. It just so happens that the day before the elections he hasto y to the United States, so he could not cast his vote. He istemporarily abroad, but not residing there. He stays in a hotel for twodays and comes back. This is not limited only to Filipinos temporarilyresiding abroad. But as long as he is temporarily abroad on the date ofthe elections, then he can fall within the prescription of Congress in thatsituation.MR. SUAREZ. I thank the Commissioner for his further clarication.Precisely, we need this clarication on record.MR. MONSOD. Madam President, to clarify what we mean by "temporarilyabroad," it need not be on very short trips. One can be abroad on atreaty traders visa. Therefore, when we talk about registration, it ispossible that his residence is in Angeles and he would be able to vote forthe candidates in Angeles, but Congress or the Assembly may provide theprocedure for registration, like listing one's name, in a registry list in theembassy abroad. That is still possible under the system.FR. BERNAS. Madam President, just one clarication if CommissionerMonsod agrees with this.Suppose we have a situation of a child of a diplomatic ocer who reachesthe voting age while living abroad and he has never registered here.Where will he register? Will he be a registered voter of a certain locality inthe Philippines?MR. MONSOD. Yes, it is possible that the system will enable that child tocomply with the registration requirements in an embassy in the UnitedStates and his name is then entered in the ocial registration book inAngeles City, for instance.FR. BERNAS. In other words, he is not a registered voter of Los Angeles,but a registered voter of a locality here.MR. MONSOD. That is right. He does not have to come home to thePhilippines to comply with the registration procedure here.FR. BERNAS. So, he does not have to come home.MR. BENGZON. Madam President, the Floor Leader wishes to inquire if

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MR. BENGZON. Madam President, the Floor Leader wishes to inquire if

there are more clarications needed from the body.Also, the Floor Leader is happy to announce that there are no moreregistered Commissioners to propose amendments. So I move that weclose the period of amendments. 36 (Emphasis and Italics supplied)

It is clear from these discussions of the members of the Constitutional

Commission that they intended to enfranchise as much as possible all Filipinocitizens abroad who have not abandoned their domicile of origin. TheCommission even intended to extend to young Filipinos who reach voting ageabroad whose parents' domicile of origin is in the Philippines, and consider themqualied as voters for the rst time.It is in pursuance of that intention that the Commission provided for Section 2immediately after the residency requirement of Section 1. By the doctrine ofnecessary implication in statutory construction, which may be applied inconstruing constitutional provisions, 37 the strategic location of Section 2indicates that the Constitutional Commission provided for an exception to theactual residency requirement of Section 1 with respect to qualied Filipinosabroad. The same Commission has in eect declared that qualied Filipinos whoare not in the Philippines may be allowed to vote even though they do notsatisfy the residency requirement in Section 1, Article V of the Constitution.That Section 2 of Article V of the Constitution is an exception to the residencyrequirement found in Section 1 of the same Article was in fact the subject ofdebate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberatedupon on the Senate oor, thus:Senator Arroyo. Mr. President, this bill should be looked into in relation tothe constitutional provisions. I think the sponsor and I would agree thatthe Constitution is supreme in any statute that we may enact.Let me read Section 1, Article V, of the Constitution entitled, "Surage." Itsays:Section 1. Surage may be exercised by all citizens of thePhilippines not otherwise disqualied by law, who are atleast eighteen years of age, and who shall have resided inthe Philippines for at least one year and in the place whereinthey propose to vote for at least six months immediatelypreceding the election.Now, Mr. President, the Constitution says, "who shall have resided in thePhilippines." They are permanent immigrants. They have changedresidence so they are barred under the Constitution. This is why I askedwhether this committee amendment which in fact does not alter theoriginal text of the bill will have any eect on this?

Senator Angara. Good question, Mr. President. And this has been asked invarious fora. This is in compliance with the Constitution. One, theinterpretation here of "residence" is synonymous with "domicile."As the gentleman and I know, Mr. President, "domicile" is the intent toreturn to one's home. And the fact that a Filipino may have beenCD Technologies Asia, Inc. 2016

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physically absent from the Philippines and may be physically a resident of

the United States, for example, but has a clear intent to return to thePhilippines, will make him qualied as a resident of the Philippines underthis law.This is consistent, Mr. President, with the constitutional mandate that we that Congress must provide a franchise to overseas Filipinos.If we read the Constitution and the surage principle literally asdemanding physical presence, then there is no way we can provide foroshore voting to our oshore kababayan, Mr. President.Senator Arroyo. Mr. President, when the Constitution says, in Section 2 ofArticle V, it reads: "The Congress shall provide a system for securing thesecrecy and sanctity of the ballot as well as a system for absentee votingby qualied Filipinos abroad."The key to this whole exercise, Mr. President, is "qualied." In otherwords, anything that we may do or say in granting our compatriotsabroad must be anchored on the proposition that they are qualied.Absent the qualication, they cannot vote. And "residents" (sic) is aqualication.I will lose votes here from permanent residents so-called "green-cardholders," but the Constitution is the Constitution. We cannot compromiseon this. The Senate cannot be a party to something that would aect orimpair the Constitution.Look at what the Constitution says "In the place wherein they proposeto vote for at least six months immediately preceding the election."Mr. President, all of us here have run (sic) for oce.I live in Makati. My neighbor is Pateros where Senator Cayetano lives. Weare separated only by a creek. But one who votes in Makati cannot votein Pateros unless he resides in Pateros for six months. That is howrestrictive our Constitution is. I am not talking even about the ElectionCode. I am talking about the Constitution.As I have said, if a voter in Makati would want to vote in Pateros, yes, hemay do so. But he must do so, make the transfer six months before theelection, otherwise, he is not qualied to vote.That is why I am raising this point because I think we have a fundamentaldierence here.Senator Angara. It is a good point to raise, Mr. President. But it is a pointalready well-debated even in the constitutional commission of 1986. Andthe reason Section 2 of Article V was placed immediately after the sixmonth/one-year residency requirement is to demonstrate unmistakablythat Section 2 which authorizes absentee voting is an exception to the sixmonth/one-year residency requirement. That is the rst principle, Mr.President, that one must remember.The second reason, Mr. President, is that under our jurisprudence andI think this is so well-entrenched that one need not argue about it "residency" has been interpreted as synonymous with "domicile."CD Technologies Asia, Inc. 2016

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But the third more practical reason, Mr. President, is, if we follow theinterpretation of the gentleman, then it is legally and constitutionallyimpossible to give a franchise to vote to overseas Filipinos who do notphysically live in the country, which is quite ridiculous because that isexactly the whole point of this exercise to enfranchise them andempower them to vote. 38 (Emphasis and italics supplied)

Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absenteevoting process, to wit:SEC. 4. Coverage. All citizens of the Philippines abroad, who are nototherwise disqualied by law, at least eighteen (18) years of age on theday of elections, may vote for president, vice-president, senators andparty-list representatives.

which does not require physical residency in the Philippines; and Section 5 ofthe assailed law which enumerates those who are disqualied, to wit:SEC. 5. Disqualications. The following shall be disqualied from votingunder this Act:a) Those who have lost their Filipino citizenship in accordance withPhilippine laws;b) Those who have expressly renounced their Philippine citizenship andwho have pledged allegiance to a foreign country;c) Those who have committed and are convicted in a nal judgment by acourt or tribunal of an oense punishable by imprisonment of not lessthan one (1) year, including those who have committed and been foundguilty of Disloyalty as dened under Article 137 of the Revised PenalCode, such disability not having been removed by plenary pardon oramnesty: Provided, however, That any person disqualied to vote underthis subsection shall automatically acquire the right to vote uponexpiration of ve (5) years after service of sentence; Provided, further,That the Commission may take cognizance of nal judgments issued byforeign courts or tribunals only on the basis of reciprocity and subject tothe formalities and processes prescribed by the Rules of Court onexecution of judgments;d) An immigrant or a permanent resident who is recognized as such inthe host country, unless he/she executes, upon registration, an adavitprepared for the purpose by the Commission declaring that he/she shallresume actual physical permanent residence in the Philippines not laterthan three (3) years from approval of his/her registration under this Act.Such adavit shall also state that he/she has not applied for citizenship inanother country. Failure to return shall be cause for the removal of thename of the immigrant or permanent resident from the National Registryof Absentee Voters and his/her permanent disqualication to vote inabsentia.e) Any citizen of the Philippines abroad previously declared insane orincompetent by competent authority in the Philippines or abroad, asveried by the Philippine embassies, consulates or foreign serviceestablishmentsconcerned,unlesssuchcompetentauthoritysubsequently certies that such person is no longer insane orCD Technologies Asia, Inc. 2016

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incompetent.

As nally approved into law, Section 5(d) of R.A. No. 9189 specically disqualiesa n immigrant or permanent resident who is "recognized as such in the hostcountry" because immigration or permanent residence in another countryimplies renunciation of one's residence in his country of origin. However, sameSection allows an immigrant and permanent resident abroad to register as voterfor as long as he/she executes an adavit to show that he/she has notabandoned his domicile in pursuance of the constitutional intent expressed inSections 1 and 2 of Article V that "all citizens of the Philippines not otherwisedisqualied by law" must be entitled to exercise the right of surage and, thatCongress must establish a system for absentee voting; for otherwise, if actual,physical residence in the Philippines is required, there is no sense for the framersof the Constitution to mandate Congress to establish a system for absenteevoting.AISHcD

Contrary to the claim of petitioner, the execution of the adavit itself is not theenabling or enfranchising act. The adavit required in Section 5(d) is not onlyproof of the intention of the immigrant or permanent resident to go back andresume residency in the Philippines, but more signicantly, it serves as anexplicit expression that he had not in fact abandoned his domicile of origin. Thus,it is not correct to say that the execution of the adavit under Section 5(d)violates the Constitution that proscribes "provisional registration or a promise bya voter to perform a condition to be qualied to vote in a political exercise."To repeat, the adavit is required of immigrants and permanent residentsabroad because by their status in their host countries, they are presumed to haverelinquished their intent to return to this country; thus, without the adavit, thepresumption of abandonment of Philippine domicile shall remain.Further perusal of the transcripts of the Senate proceedings discloses anotherreason why the Senate required the execution of said adavit. It wanted theaant to exercise the option to return or to express his intention to return to hisdomicile of origin and not to preempt that choice by legislation. Thus:Senator Villar. Yes, we are going back.It states that: "For Filipino immigrants and those who have acquiredpermanent resident status abroad," a requirement for the registration isthe submission of "a Sworn Declaration of Intent to Return duly swornbefore any Philippine embassy or consulate ocial authorized toadminister oath. . . "Mr. President, may we know the rationale of this provision? Is thepurpose of this Sworn Declaration to include only those who have theintention of returning to be qualied to exercise the right of surage?What if the Filipino immigrant has no purpose of returning? Is heautomatically disbarred from exercising this right to surage?Senator Angara. The rationale for this, Mr. President, is that we want tobe expansive and all-inclusive in this law. That as long as he is a Filipino, nomatter whether he is a green-card holder in the U.S. or not, he will beauthorized to vote. But if he is already a green-card holder, that meanshe has acquired permanent residency in the United States, then he mustCD Technologies Asia, Inc. 2016

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indicate an intention to return. This is what makes for the denition of

"domicile." And to acquire the vote, we thought that we would require theimmigrants and the green-card holders . . . Mr. President, the threeadministration senators are leaving, maybe we may ask for a vote[Laughter].Senator Villar. For a merienda, Mr. President.Senator Angara. Mr. President, going back to the business at hand. Therationale for the requirement that an immigrant or a green-card holdershould le an adavit that he will go back to the Philippines is that, if he isalready an immigrant or a green-card holder, that means he may notreturn to the country any more and that contradicts the denition of"domicile" under the law.

But what we are trying to do here, Mr. President, is really

provide the choice to the voter. The voter, after consulting his lawyeror after deliberation within the family, may decide No, I think we arerisking our permanent status in the United States if we le an adavit thatwe want to go back." But we want to give him the opportunity tomake that decision. We do not want to make that decision forhim. 39 (Emphasis and italics supplied)

The jurisprudential declaration in Caasi vs. Court of Appeals that green cardholders are disqualied to run for any elective oce nds no application to thepresent case because the Caasi case did not, for obvious reasons, consider theabsentee voting rights of Filipinos who are immigrants and permanent residentsin their host countries.In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, theymay still be considered as a "qualied citizen of the Philippines abroad" uponfulllment of the requirements of registration under the new law for the purposeof exercising their right of surage.It must be emphasized that Section 5(d) does not only require an adavit or apromise to "resume actual physical permanent residence in the Philippines notlater than three years from approval of his/her registration," the Filipinos abroadmust also declare that they have not applied for citizenship in another country.Thus, they must return to the Philippines; otherwise, their failure to return "shallbe cause for the removal" of their names "from the National Registry of AbsenteeVoters and his/her permanent disqualication to vote in absentia."Thus, Congress crafted a process of registration by which a Filipino voterpermanently residing abroad who is at least eighteen years old, not otherwisedisqualied by law, who has not relinquished Philippine citizenship and who hasnot actually abandoned his/her intentions to return to his/her domicile of origin,the Philippines, is allowed to register and vote in the Philippine embassy,consulate or other foreign service establishments of the place which hasjurisdiction over the country where he/she has indicated his/her address forpurposes of the elections, while providing for safeguards to a clean election.Thus, Section 11 of R.A. No. 9189 provides:CD Technologies Asia, Inc. 2016

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SEC. 11. Procedure for Application to Vote in Absentia.

11.1. Every qualied citizen of the Philippines abroad whose applicationfor registration has been approved, including those previously registeredunder Republic Act No. 8189, shall, in every national election, le with theocer of the embassy, consulate or other foreign service establishmentauthorized by the Commission, a sworn written application to vote in aform prescribed by the Commission. The authorized ocer of suchembassy, consulate or other foreign service establishment shall transmitto the Commission the said application to vote within ve (5) days fromreceipt thereof. The application form shall be accomplished in triplicateand submitted together with the photocopy of his/her overseas absenteevoter certicate of registration.11.2. Every application to vote in absentia may be done personally at, orby mail to, the embassy, consulate or foreign service establishment,which has jurisdiction over the country where he/she has indicatedhis/her address for purposes of the elections.11.3. Consular and diplomatic services rendered in connection with theoverseas absentee voting processes shall be made available at no cost tothe overseas absentee voter.

Contrary to petitioner's claim that Section 5(d) circumvents the Constitution,

Congress enacted the law prescribing a system of overseas absentee voting incompliance with the constitutional mandate. Such mandate expressly requiresthat Congress provide a system of absentee voting that necessarily presupposesthat the "qualied citizen of the Philippines abroad" is not physically present inthe country. The provisions of Sections 5(d) and 11 are components of thesystem of overseas absentee voting established by R.A. No. 9189. The qualiedFilipino abroad who executed the adavit is deemed to have retained hisdomicile in the Philippines. He is presumed not to have lost his domicile by hisphysical absence from this country. His having become an immigrant orpermanent resident of his host country does not necessarily imply anabandonment of his intention to return to his domicile of origin, the Philippines.Therefore, under the law, he must be given the opportunity to express that hehas not actually abandoned his domicile in the Philippines by executing theadavit required by Sections 5(d) and 8(c) of the law.Petitioner's speculative apprehension that the implementation of Section 5(d)would aect the credibility of the elections is insignicant as what is importantis to ensure that all those who possess the qualications to vote on the date ofthe election are given the opportunity and permitted to freely do so. TheCOMELEC and the Department of Foreign Aairs have enough resources andtalents to ensure the integrity and credibility of any election conducted pursuantto R.A. No. 9189.As to the eventuality that the Filipino abroad would renege on his undertaking toreturn to the Philippines, the penalty of perpetual disenfranchisement providedfor by Section 5(d) would suce to serve as deterrence to non-compliance withhis/her undertaking under the adavit.Petitioner argues that should a sizable number of "immigrants" renege on theirpromise to return, the result of the elections would be aected and could even beCD Technologies Asia, Inc. 2016

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a ground to contest the proclamation of the winning candidates and cause

further confusion and doubt on the integrity of the results of the election.Indeed, the probability that after an immigrant has exercised the right to vote,he shall opt to remain in his host country beyond the third year from theexecution of the adavit, is not farfetched. However, it is not for this Court todetermine the wisdom of a legislative exercise. As expressed in Taada vs.Tuvera, 40 the Court is not called upon to rule on the wisdom of the law or torepeal it or modify it if we nd it impractical.Congress itself was conscious of said probability and in fact, it has addressed theexpected problem. Section 5(d) itself provides for a deterrence which is that theFilipino who fails to return as promised stands to lose his right of surage. UnderSection 9, should a registered overseas absentee voter fail to vote for twoconsecutive national elections, his name may be ordered removed from theNational Registry of Overseas Absentee Voters.Other serious legal questions that may be raised would be: what happens to thevotes cast by the qualied voters abroad who were not able to return withinthree years as promised? What is the eect on the votes cast by the nonreturnees in favor of the winning candidates? The votes cast by qualied Filipinosabroad who failed to return within three years shall not be invalidated becausethey were qualied to vote on the date of the elections, but their failure to returnshall be cause for the removal of the names of the immigrants or permanentresidents from the National Registry of Absentee Voters and their permanentdisqualication to vote in absentia.In ne, considering the underlying intent of the Constitution, the Court does notnd Section 5(d) of R.A. No. 9189 as constitutionally defective.B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act incontravention of Section 4, Article VII of the Constitution?Section 4 of R.A. No. 9189 provides that the overseas absentee voter may votefor president, vice-president, senators and party-list representatives.Section 18.5 of the same Act provides:SEC. 18. On-Site Counting and Canvassing. xxx xxx xxx18.5 The canvass of votes shall not cause the delay of the proclamationof a winning candidate if the outcome of the election will not be aectedby the results thereof. Notwithstanding the foregoing, the Commission isempowered to order the proclamation of winning candidates despite thefact that the scheduled election has not taken place in a particularcountry or countries, if the holding of elections therein has beenrendered impossible by events, factors and circumstances peculiar tosuch country or countries, in which events, factors and circumstancesare beyond the control or inuence of the Commission. (Italics supplied)

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empoweringthe COMELEC to order the proclamation of winning candidates insofar as itaects the canvass of votes and proclamation of winning candidates forpresident and vice-president, is unconstitutional because it violates the followingCD Technologies Asia, Inc. 2016

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provisions of paragraph 4, Section 4 of Article VII of the Constitution:

SEC. 4. . . .The returns of every election for President and Vice-President, dulycertied by the board of canvassers of each province or city, shall betransmitted to the Congress, directed to the President of the Senate.Upon receipt of the certicates of canvass, the President of the Senateshall, not later than thirty days after the day of the election, open all thecerticates in the presence of the Senate and the House ofRepresentatives in joint public session, and the Congress, upondetermination of the authenticity and due execution thereof in themanner provided by law, canvass the votes.The person having the highest number of votes shall be proclaimedelected, but in case two or more shall have an equal and highest numberof votes, one of them shall forthwith be chosen by the vote of a majorityof all the Members of both Houses of the Congress, voting separately.The Congress shall promulgate its rules for the canvassing of thecerticates.xxx xxx xxx

which gives to Congress the duty to canvass the votes and proclaim thewinning candidates for president and vice-president.The Solicitor General asserts that this provision must be harmonized withparagraph 4, Section 4, Article VII of the Constitution and should be taken tomean that COMELEC can only proclaim the winning Senators and party-listrepresentatives but not the President and Vice-President. 41Respondent COMELEC has no comment on the matter.Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A.No. 9189 is far too sweeping that it necessarily includes the proclamation of thewinning candidates for the presidency and the vice-presidency.Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII ofthe Constitution only insofar as said Section totally disregarded the authoritygiven to Congress by the Constitution to proclaim the winning candidates for thepositions of president and vice-president.In addition, the Court notes that Section 18.4 of the law, to wit:18.4. . . . Immediately upon the completion of the canvass, the chairmanof the Special Board of Canvassers shall transmit via facsimile, electronicmail, or any other means of transmission equally safe and reliable theCerticates of Canvass and the Statements of Votes to the Commission, .. . [Italics supplied]

clashes with paragraph 4, Section 4, Article VII of the Constitution which

provides that the returns of every election for President and Vice-Presidentshall be certied by the board of canvassers to Congress.CD Technologies Asia, Inc. 2016

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Congress could not have allowed the COMELEC to usurp a power thatconstitutionally belongs to it or, as aptly stated by petitioner, to encroach "on thepower of Congress to canvass the votes for president and vice-president and thepower to proclaim the winners for the said positions." The provisions of theConstitution as the fundamental law of the land should be read as part of TheOverseas Absentee Voting Act of 2003 and hence, the canvassing of the votesand the proclamation of the winning candidates for president and vice-presidentfor the entire nation must remain in the hands of Congress.C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IXA of the Constitution?Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A(Common Provisions) of the Constitution, to wit:Section 1. The Constitutional Commissions, which shall be independent,are the Civil Service Commission, the Commission on Elections, and theCommission on Audit. (Italics supplied)

He submits that the creation of the Joint Congressional Oversight Committee

with the power to review, revise, amend and approve the Implementing Rulesand Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes intothe independence of the COMELEC which, as a constitutional body, is notunder the control of either the executive or legislative departments ofgovernment; that only the COMELEC itself can promulgate rules andregulations which may be changed or revised only by the majority of itsmembers; and that should the rules promulgated by the COMELEC violate anylaw, it is the Court that has the power to review the same via the petition ofany interested party, including the legislators.It is only on this question that respondent COMELEC submitted its Comment. Itagrees with the petitioner that Sections 19 and 25 of R.A. No. 9189 areunconstitutional. Like the petitioner, respondent COMELEC anchors its claim ofunconstitutionality of said Sections upon Section 1, Article IX-A of theConstitution providing for the independence of the constitutional commissionssuch as the COMELEC. It asserts that its power to formulate rules andregulations has been upheld in Gallardo vs. Tabamo, Jr. 42 where this Court heldthat the power of the COMELEC to formulate rules and regulations is implicit inits power to implement regulations under Section 2(1) of Article IX-C 43 of theConstitution. COMELEC joins the petitioner in asserting that as an independentconstitutional body, it may not be subject to interference by any governmentinstrumentality and that only this Court may review COMELEC rules and only incases of grave abuse of discretion.The COMELEC adds, however, that another provision, vis--vis its rule-makingpower, to wit:SEC. 17. Voting by Mail. 17.1. For the May, 2004 elections, the Commission shall authorize votingby mail in not more than three (3) countries, subject to the approval ofthe Congressional Oversight Committee. Voting by mail may be allowed incountries that satisfy the following conditions:CD Technologies Asia, Inc. 2016

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a) Where the mailing system is fairly well-developed and secure to

prevent occasion for fraud;b) Where there exists a technically established identication systemthat would preclude multiple or proxy voting; andc) Where the system of reception and custody of mailed ballots intheembassies,consulatesandotherforeignserviceestablishments concerned are adequate and well-secured.Thereafter, voting by mail in any country shall be allowed only uponreview and approval of the Joint Congressional Oversight Committee.xxx xxx xxx (Italics supplied)

is likewise unconstitutional as it violates Section 1, Article IX-A mandating the

independence of constitutional commissions.The Solicitor General takes exception to his prefatory statement that theconstitutional challenge must fail and agrees with the petitioner that Sections 19and 25 are invalid and unconstitutional on the ground that there is nothing inArticle VI of the Constitution on Legislative Department that would as much asimply that Congress has concurrent power to enforce and administer electionlaws with the COMELEC; and by the principles of exclusio unius est exclusioalterius and expressum facit cessare tacitum, the constitutionally enumeratedpowers of Congress circumscribe its authority to the exclusion of all others.The parties are unanimous in claiming that Sections 19, 25 and portions ofSection 17.1 are unconstitutional. Thus, there is no actual issue forged on thisquestion raised by petitioner.However, the Court nds it expedient to expound on the role of Congressthrough the Joint Congressional Oversight Committee (JCOC) vis--vis theindependence of the COMELEC, as a constitutional body.R.A. No. 9189 created the JCOC, as follows:SEC.25. Joint Congressional Oversight Committee. A JointCongressional Oversight Committee is hereby created, composed of theChairman of the Senate Committee on Constitutional Amendments,Revision of Codes and Laws, and seven (7) other Senators designated bythe Senate President, and the Chairman of the House Committee onSurage and Electoral Reforms, and seven (7) other Members of theHouse of Representatives designated by the Speaker of the House ofRepresentatives: Provided, That, of the seven (7) members to bedesignated by each House of Congress, four (4) should come from themajority and the remaining three (3) from the minority.The Joint Congressional Oversight Committee shall have the power tomonitor and evaluate the implementation of this Act. It shall review,revise, amend and approve the Implementing Rules and Regulationspromulgated by the Commission. (Italics supplied)SEC. 19. Authority of the Commission to Promulgate Rules . TheCommission shall issue the necessary rules and regulations to eectivelyimplement the provisions of this Act within sixty (60) days from theCD Technologies Asia, Inc. 2016

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eectivity of this Act. The Implementing Rules and Regulations shall be

submitted to the Joint Congressional Oversight Committee created byvirtue of this Act for prior approval.xxx xxx xxx (Italics supplied)

Composed of Senators and Members of the House of Representatives, the

Joint Congressional Oversight Committee (JCOC) is a purely legislative body.There is no question that the authority of Congress to "monitor and evaluatethe implementation" of R.A. No. 9189 is geared towards possible amendmentsor revision of the law itself and thus, may be performed in aid of itslegislation.However, aside from its monitoring and evaluation functions, R.A. No. 9189 givesto the JCOC the following functions: (a) to "review, revise, amend and approvethe Implementing Rules and Regulations" (IRR) promulgated by the COMELEC[Sections 25 and 19]; and (b) subject to the approval of the JCOC [Section 17.1],the voting by mail in not more than three countries for the May 2004 electionsand in any country determined by COMELEC.The ambit of legislative power under Article VI of the Constitution iscircumscribed by other constitutional provisions. One such provision is Section 1of Article IX-A of the 1987 Constitution ordaining that constitutionalcommissions such as the COMELEC shall be "independent."Interpreting Section 1, Article X of the 1935 Constitution providing that thereshall be an independent COMELEC, the Court has held that "[w]hatever may bethe nature of the functions of the Commission on Elections, the fact is that theframers of the Constitution wanted it to be independent from the otherdepartments of the Government." 44 In an earlier case, the Court elucidated:The Commission on Elections is a constitutional body. It is intended toplay a distinct and important part in our scheme of government. In thedischarge of its functions, it should not be hampered with restrictionsthat would be fully warranted in the case of a less responsibleorganization. The Commission may err, so may this court also. It shouldbe allowed considerable latitude in devising means and methods that willinsure the accomplishment of the great objective for which it was created free, orderly and honest elections. We may not agree fully with itschoice of means, but unless these are clearly illegal or constitute grossabuse of discretion, this court should not interfere. Politics is a practicalmatter, and political questions must be dealt with realistically not fromthe standpoint of pure theory. The Commission on Elections, because ofits fact-nding facilities, its contacts with political strategists, and itsknowledge derived from actual experience in dealing with politicalcontroversies, is in a peculiarly advantageous position to decide complexpolitical questions. 45 (Italics supplied)

The Court has no general powers of supervision over COMELEC which is an

independent body "except those specically granted by the Constitution," thatis, to review its decisions, orders and rulings. 46 In the same vein, it is notcorrect to hold that because of its recognized extensive legislative power toenact election laws, Congress may intrude into the independence of the

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COMELEC by exercising supervisory powers over its rule-making authority.

By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELECto "issue the necessary rules and regulations to eectively implement theprovisions of this Act within sixty days from the eectivity of this Act." Thisprovision of law follows the usual procedure in drafting rules and regulations toimplement a law the legislature grants an administrative agency the authorityto craft the rules and regulations implementing the law it has enacted, inrecognition of the administrative expertise of that agency in its particular eld ofoperation. 47 Once a law is enacted and approved, the legislative function isdeemed accomplished and complete. The legislative function may spring back toCongress relative to the same law only if that body deems it proper to review,amend and revise the law, but certainly not to approve, review, revise andamend the IRR of the COMELEC.By vesting itself with the powers to approve, review, amend, and revise the IRRfor The Overseas Absentee Voting Act of 2003, Congress went beyond the scopeof its constitutional authority. Congress trampled upon the constitutionalmandate of independence of the COMELEC. Under such a situation, the Court isleft with no option but to withdraw from its usual reticence in declaring aprovision of law unconstitutional.The second sentence of the rst paragraph of Section 19 stating that "[t]heImplementing Rules and Regulations shall be submitted to the JointCongressional Oversight Committee created by virtue of this Act for priorapproval," and the second sentence of the second paragraph of Section 25 statingthat "[i]t shall review, revise, amend and approve the Implementing Rules andRegulations promulgated by the Commission," whereby Congress, in bothprovisions, arrogates unto itself a function not specically vested by theConstitution, should be stricken out of the subject statute for constitutionalinrmity. Both provisions brazenly violate the mandate on the independence ofthe COMELEC.Similarly, the phrase, "subject to the approval of the Congressional OversightCommittee" in the rst sentence of Section 17.1 which empowers theCommission to authorize voting by mail in not more than three countries for theMay, 2004 elections; and the phrase, "only upon review and approval of the JointCongressional Oversight Committee" found in the second paragraph of the samesection are unconstitutional as they require review and approval of voting bymail in any country after the 2004 elections. Congress may not confer uponitself the authority to approve or disapprove the countries wherein voting bymail shall be allowed, as determined by the COMELEC pursuant to the conditionsprovided for in Section 17.1 of R.A. No. 9189. 48 Otherwise, Congress wouldoverstep the bounds of its constitutional mandate and intrude into theindependence of the COMELEC.During the deliberations, all the members of the Court agreed to adopt theseparate opinion of Justice Reynato S. Puno as part of the ponencia on theunconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as theyrelate to the creation of and the powers given to the Joint CongressionalOversight Committee.WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No.CD Technologies Asia, Inc. 2016

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9189 are declared VOID for being UNCONSTITUTIONAL:

a) The phrase in the rst sentence of the rst paragraph of Section 17.1, to wit:"subject to the approval of the Joint Congressional Oversight Committee ;"b) The portion of the last paragraph of Section 17.1, to wit: " only upon reviewand approval of the Joint Congressional Oversight Committee;"c) The second sentence of the rst paragraph of Section 19, to wit: " TheImplementing Rules and Regulations shall be submitted to the JointCongressional Oversight Committee created by virtue of this Act for priorapproval;" andd) The second sentence in the second paragraph of Section 25, to wit: "It shallreview, revise, amend and approve the Implementing Rules and Regulationspromulgated by the Commission" of the same law;for being repugnant to Section 1, Article IX-A of the Constitution mandatingthe independence of constitutional commission, such as COMELEC.The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respectonly to the authority given to the COMELEC to proclaim the winning candidatesfor the Senators and party-list representatives but not as to the power to canvassthe votes and proclaim the winning candidates for President and Vice-Presidentwhich is lodged with Congress under Section 4, Article VII of the Constitution.The constitutionality of Section 5(d) is UPHELD.Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said lawcontinues to be in full force and eect.SO ORDERED.Davide, Jr., C.J. and Corona, JJ., concur.Bellosillo, J., see concurring opinion.Vitug and Panganiban, JJ., see separate opinion.Carpio, Carpio Morales and Azcuna, JJ., see concurring opinion.Puno, Ynares-Santiago and Callejo, Sr., JJ., see concurring and dissenting opinion.Sandoval-Gutierrez, J., is on ocial leave and left her concurring and dissentingopinion.Tinga, J., took no part.Quisumbing, J., is on leave.

Separate OpinionsBELLOSILLO, J.: concurringThe concept of absentee voting exudes an arresting charm of novelty andimportance. For the rst time in our checkered political history, we are expandingCD Technologies Asia, Inc. 2016

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the frontiers of our electoral process warily treading into a veritable terraincognita. The Absentee Voting Law 1 empowers citizens, hitherto outside thereaches of the ballot, to assert their sovereign will and dictate the nationaldestiny. It caters to their fundamental yearning for some measure ofparticipation in the process of reaching fateful decisions for their country,although they may be at some distant shores.I concur with the collective wisdom of the majority. I wish however to expressmy views on the pivotal issue of whether Sec. 5, par. (d), of the Absentee VotingLaw allowing the registration of voters who are immigrants or permanentresidents in other countries by their mere act of executing an adavitexpressing their intention to return to the Philippines violates the residencyrequirement in Sec. 1, Art. V, 1987 Constitution.The fundamental law mandates ARTICLE VSUFFRAGESection 1. Surage may be exercised by all citizens of the Philippines nototherwise disqualied by law, who are at least eighteen years of age, andwho shall have resided in the Philippines for at least one year and in theplace wherein they propose to vote for at least six months immediatelypreceding the election. No literacy, property or other substantiverequirement shall be imposed on the exercise of surage.Section 2. The Congress shall provide a system for securing the secrecyand sanctity of the ballot as well as a system for absentee voting byqualied Filipinos abroad . . . . (italics supplied).

On the other hand, Sec. 5, par. (d), of the Absentee Voting Law, the restlessbattleground of passionate advocacy, provides Sec. 5. Disqualications. The following shall be disqualied from votingunder this Act: . . . d) An immigrant or a permanent resident who isrecognized as such in the host country, unless he/she executes, uponregistration, an adavit prepared for the purpose by the Commissiondeclaring that he/she shall resume actual physical permanent residence inthe Philippines not later than three (3) years from approval of his/herregistration under this Act. Such adavit shall also state that he/she hasnot applied for citizenship in another country. Failure to return shall because for the removal of the name of the immigrant or permanentresident from the National Registry of Absentee Voters and his/herpermanent disqualication to vote in absentia (italics supplied).

It has been suggested by certain quarters that all Filipino citizens who areimmigrants and permanent residents abroad are considered to have abandonedtheir Philippine domicile and therefore cannot vote in Philippine elections, sincethey are not within the constitutional contemplation of "qualied Filipinosabroad" who are eligible to vote.In this jurisdiction, it is well settled that "domicile" and "residence" as used inelection laws are synonymous terms which import not only an intention toreside in a xed place but also personal presence in that place coupled withCD Technologies Asia, Inc. 2016

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conduct indicative of that intention. 2 Domicile is a question of intention and

circumstances. There are three (3) rules that must be observed in theconsideration of circumstances: rst, that a man must have a residence ordomicile somewhere; second, domicile is not easily lost, once established it isretained until a new one is acquired; and third, a man can have but one residenceor domicile at a time. 3 The principal elements of domicile, i.e., physical presencein the locality involved and intention to adopt it as a domicile, must concur inorder to establish a new domicile. No change of domicile will result if either ofthese elements is absent. Intention to acquire a domicile without actualresidence in the locality does not result in the acquisition of domicile, nor doesthe fact of physical presence without intention. 4The mere acquisition of an immigrant or permanent resident status by a Filipinocitizen in a foreign country does not ipso jure result in the automatic severanceof his domiciliary link to the Philippines, nor the acquisition of a new domicile ofchoice.Dierent jurisdictions vary in their legal characterization of the terms immigrantand permanent resident, with dissimilar requirements, conditions andrestrictions for the acquisition and maintenance of those statuses. Territorieswith conservative policies on immigration tend to be restrictive and exclusive,especially on matters relating to residency (or domiciliary); while more opensocieties tend to be liberal and inclusive.

To illustrate: In the United States, an overwhelming majority of our compatriots

are now enjoying the rights and privileges of permanent residents andimmigrants. The U.S. Immigration and Nationality Act denes the termpermanent as "a relationship of continuing and lasting nature, as distinguishedfrom temporary, but a relationship may be permanent even though it is one thatmay be dissolved eventually at the instance either of the United States or of theindividual, in accordance with law;" 5 and residence as "a place of general abode;and the place of general abode of a person means his principal, actual dwellingplace in fact, without regard to intent." 6Thus, considering that intent is not necessary in establishing permanentresidency in the U.S., it is entirely possible for a Filipino citizen to be a permanentresident in the U.S., i.e., the U.S. may be his general place of abode, "hisprincipal, actual dwelling place in fact," for an indenite period of time, withouthowever abandoning his Philippine domicile to which he intends to return later.Immigrants, on the other hand, have been loosely dened as referring to "everyalien in the United States, except an alien who is within one of the nonimmigrant aliens enumerated in the Immigration and Nationality Act of theUnited States. " 7 They are classied into the non-quota immigrants and thequota immigrants. The quota immigrants may fall in either of two (2) categories:the family-based preferences and the employment-based preferences.Particularly interesting is the last mentioned category, the employment-basedpreferences. These immigrants are conferred the status as such on the basis oftheir occupational skills and the employment demands in the host country. Tothis class belongs the professionals, investors, managers and executives, skilledCD Technologies Asia, Inc. 2016

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workers, health workers, professors and researchers. Many Filipino citizens fallunder this category, and most of them opt for immigrant status solely for thepurpose of securing permanent employment in the U.S., and intend to return tothe Philippines after their purpose is accomplished.The diaspora of Filipinos in foreign lands started in the wake of the bludgeoningeconomic crisis in the 80's and its resulting acute shortage of employmentopportunities. This phenomenon has continued to the present day as the steadilyrising cost of living and intermittent economic crises worldwide in their eects weighed most heavily on the ordinary Filipino. He does not have much choice:leave or starve. The lure of the proverbial greener pastures in foreign lands iscertainly a potent incentive for an exodus.In most cases, the decision to migrate is borne out of the dire necessities of liferather than a conscious desire to abandon the land of birth. Most immigrants andpermanent residents remain bound very strongly by intimate ties of lial, racial,cultural and social relationships with the Philippines. They travel backperiodically to be with their friends and loved ones; some even own, maintainand manage their properties here; and, they continue to show keen interest in,and keep themselves abreast with, political and social developments in thecountry through the mass media. They make signicant contributions to thenation, through their regular dollar remittances that have tremendously shoredup our sagging national economy.In the face of these realities, I am convinced more than ever that actual andphysical residence abroad should not automatically be equated withabandonment of Philippine domicile. The circumstances enumerated in theimmediately preceding paragraph are valid indicia of animus manendi (intent toremain) and animus revertendi (intent to return), which should not simply bebrushed aside in determining whether the right to vote should be denied theimmigrants and permanent residents. Indeed, there is no rhyme nor reason tounduly marginalize this class of Filipinos.It is signicant to stress, however, that Sec. 5, par. (d), of the Absentee VotingLaw in fact disqualies immigrants and permanent residents from voting as ageneral rule. This is precisely in recognition of the fact that their status as suchmay indeed be a badge of their intent to abandon their Philippine domicile andsettle permanently in their host country. But at the same time, the legislatureprovided for a mechanism in the law for ascertaining real intent: an immigrant orpermanent resident who wishes to exercise his right of surage is required as acondition sine qua non to execute an adavit declaring that he shall resumeactual, physical and permanent residence in the Philippines not later than three(3) years from his registration under the law; and that he has not applied forcitizenship in another country.The law in eect draws a distinction between two (2) classes of immigrants orpermanent residents those who have renounced their old domicile in thePhilippines, and those who still consider the Philippines as their domicile oforigin. The execution of the adavit is an armation on the part of theimmigrant or permanent resident that his stay abroad should not be construedas a relinquishment of his old domicile.I am not unaware of the possibility that the immigrant or permanent residentCD Technologies Asia, Inc. 2016

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may renege on his undertaking in the adavit to resume actual, physical andpermanent residence in the Philippines. But the law contains proper andadequate safeguards against the misuse or abuse of this privilege, i.e., his namewill be purged from the National Registry of Absentee Voters and he will bepermanently disqualied from voting in absentia.As a closing observation, I wish to emphasize that the absolute disqualication ofFi l i pi n o immigrants and permanent residents, without distinction, fromparticipating in the Philippine electoral process would invariably result, as in thepast, in a massive disenfranchisement of qualied voters. It would be selfdefeating in the extreme if the Absentee Voting Law would founder on the rockby reason of an unduly restrictive and decidedly unrealistic interpretation givenby the minority on the residency requirement in the Constitution.I vote to sustain the constitutionality of Sec. 5, par. (d), of RA 9189, and on theother hand, to declare unconstitutional Sec. 18.5 of the same law insofar as itauthorizes COMELEC to proclaim the winning candidates for President and VicePresident it being clearly violative of Sec. 4, Art. VII, of the Constitution, as wellas Secs. 17.1, 19 and 25 of RA 9189 insofar as they subject COMELECimplementing rules and regulations to review and approval by the JointCongressional Oversight Committee for being likewise violative of Sec. 1, Art. IXA of the Constitution.VITUG, J.:Indeed, the mandate of the Constitution is explicit one must be a resident inorder to vote in the country's elections. 1 But, equally compelling is its otherprovision that directs Congress to adopt a system that would allow absenteevoting by qualied Filipinos abroad. 2 The deliberations by members of theConstitutional Commission on the subject are instructive. 3"MR. SUAREZ. May I just be recognized for a clarication. There arecertain qualications for the exercise of the right of surage like havingresided in the Philippines for at least one year and in the place where theypropose to vote for at least six months preceding the elections. What isthe eect of these mandatory requirements on the matter of the exerciseof the right of surage by the absentee voters like Filipinos abroad?"THE PRESIDENT. Would Commissioner Monsod care to answer?"MR. MONSOD. I believe the answer was already given by CommissionerBernas, that the domicile requirements as well as the qualications anddisqualications would be the same."THE PRESIDENT. Are we leaving it to the legislature to devise the system?"FR. BERNAS. I think there is a very legitimate problem raised there."THE PRESIDENT. Yes."MR. BENGZON. I believe Commissioner Suarez is claried."FR. BERNAS. But I think it should be further claried with regard to theresidence requirement or the place where they vote in practice, theunderstanding is that it is exible. For instance, one might be a resident ofNaga or domiciled therein, but he satises the requirement of residence in

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Naga or domiciled therein, but he satises the requirement of residence in

Manila, so he is able to vote in Manila.MR. TINGSON. Madam President, may I suggest to the Committee tochange the word 'Filipinos' to QUALIFIED FILIPINO VOTERS. Instead of'VOTING BY FILIPINOS ABROAD,' it should be QUALIFIED FILIPINOVOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD,would that not satisfy the requirement?"THE PRESIDENT. What does Commissioner Monsod say?"MR. MONSOD. Madam President, I think I would accept the phrase'QUALIFIED FILIPINOS ABROAD' because 'QUALIFIED' would assume thathe has the qualications and none of the disqualications to vote."MR. TINGSON. That is right. So does the Committee accept?"FR. BERNAS. 'QUALIFIED FILIPINOS ABROAD'?"THE PRESIDENT. Does the Committee accept the amendment?"MR. REGALADO. Madam President."THE PRESIDENT. Commissioner Regalado is recognized."MR. REGALADO. When Commissioner Bengzon asked me to read myproposed amendment, I specically stated that the National Assemblyshall prescribe a system which will enable qualied citizens, temporarilyabsent from the Philippines, to vote. According to Commissioner Monsod,the use of the phrase "absentee voting" already took into account as itsmeaning. That is referring to qualied Filipino citizens temporarily abroad."MR. MONSOD. Yes, we accepted that. I would like to say that with respectto registration we will leave it up to the legislative assembly, for example,to require where the registration is. If it is, say, members of thediplomatic corps who may be continuously abroad for a long time,perhaps, there can be a system of registration in the embassies.However, we do not like to preempt the legislative assembly.

"THE PRESIDENT. Just to clarify, Commissioner Monsod's amendment is

only to provide a system."MR. MONSOD. Yes."THE PRESIDENT. The Commissioner is not stating here that he wantsnew qualications for these absentee voters."MR. MONSOD. That is right. They must have the qualications and noneof the disqualications."THE PRESIDENT. It is just to devise a system by which they can vote."MR. MONSOD. That is right, Madam President." (italics supplied)

In election cases, the Court, more than once, has treated residence anddomicile as being synonymous terms. In Romualdez vs. Regional Trial Courtof Tacloban, 4 this Court has said:CD Technologies Asia, Inc. 2016

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"The term 'residence' as used in the election law is synonymous with

'domicile,' which imports not only an intention to reside in a xed placebut also personal presence in that place, coupled with conduct indicativeof such intention. 'Domicile' denotes a xed permanent residence towhich when absent for business or pleasure, or for like reasons, oneintends to return. . . . Residence thus acquired, however, may be lost byadopting another choice of domicile. In order, in turn, to acquire a newdomicile by choice, there must concur (1) residence or bodily presence inthe new locality, (2) an intention to remain there, and (3) an intention toabandon the old domicile. In other words, there must basically be animusmanendi coupled with animus non revertendi. The purpose to remain in orat the domicile of choice must be for an indenite period of time; thechange of residence must be voluntary; and the residence at the placechosen for the new domicile must be actual."

The instant controversy primarily revolves on the issue of whether or not an

immigrant or a permanent resident in another country should be considered tohave lost his status as a Philippine resident and must thus be barred fromparticipating in the national elections. It is well to recall that, in acquiring a newdomicile, there must be a concurrence of animus manendi and animus nonrevertendi. Intention is always crucial. Thus, the Court, in Romualdez vs.Regional Trial Court of Tacloban 5 and Romualdez-Marcos vs. Commission onElections (COMELEC) , 6 has delved in detail into the intention of the parties todetermine the question of domicile.It is to be conceded that for quite sometime now, economic crises have forcedmillions of Filipinos to leave their homes to work and live in foreign shores. Tomost, it has not been a decision to uproot themselves, let alone completely severtheir ties, from the country of birth. It is not at all farfetched for emigratingcountrymen, when conditions warrant, to get right back home. I am not preparedto say that their immigrant status abroad is necessarily proof of an intention todiscard and to abandon the domicile of origin.Caasi vs. Court of Appeals, 7 disqualifying a "green card holder" (an immigrant ofthe United States) from running for a local public oce, was predicated onSection 68 of the Omnibus Election Code of the Philippines. This law disallowsany person who is a permanent resident of, or an immigrant to, a foreign countryto run for an elective public oce, unless he shall have "waived his status aspermanent resident or immigrant of a foreign country in accordance with theresidence requirement provided for in the election laws." No such expressdisqualication, however, exists for the exercise of the right to vote. The reasonfor the disqualication with respect to elective ocials, I take it, proceeds froman assumption that "resident aliens of a foreign country are incapable of suchentire devotion to the interest and welfare of their homeland for, with one eyeon their public duties here, they must keep another eye on their duties under thelaws of the foreign country of their choice in order to preserve their status aspermanent residents thereof." 8 The danger does not hold true with respect toimmigrants abroad who would simply be discharging their right and duty to casta vote for their candidate of choice.The law must have recognized that animus manendi and animus non revertendi,being processes of the mind and incapable of a denitive determination, couldonly be discerned from perceivable circumstances. So also, Republic Act No. 9189CD Technologies Asia, Inc. 2016

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or the "Overseas Absentee Voting Act of 2003," disqualies an "immigrant or a

permanent resident who is recognized as such in the host country" to vote underthe Act 9 on the premise that such a circumstance can be a cogent indication ofthe holder's intention to abandon his old domicile and establish a new one. But,in much the same vein, the law acknowledges that the immigrant or permanentresident may still be qualied to vote, provided "he executes, upon registration,an adavit prepared for the purpose by the Commission on Elections declaringthat he shall resume actual physical permanent residence in the Philippines notlater than three (3) years from approval of his registration under (the) Act." Theadavit shall additionally conrm that he has not applied for citizenship inanother country." 10 I am convinced that these indicators used by the legislatureare reasonable gauges to establish the intention of the immigrant not toabandon his Philippine domicile. The fact that he has not relinquished hisPhilippine citizenship should help remove any lingering doubt on his preferredstatus. After all, the right of surage, now widely considered to be an innate rightof every national, is a basic and perhaps the most outstanding mark ofcitizenship.Section 4 of the Act allows all qualied Filipinos abroad to vote for President,Vice-President, Senators and party-list representatives. In relation to this, Section18.5 empowers the Commission on Election to order the proclamation of winningcandidates. 11 Since it is Congress which has been granted by the Constitution 12the authority and duty to canvass the votes and proclaim the winning candidatesfor president and vice-president, I echo the sentiment of my colleagues that thepower given to COMELEC by Section 18.5 of R.A. 9189 should be understood tobe limited only to the proclamation of winning candidates for the positions ofsenators and party-list representatives. The election returns for the positions ofpresident and vice-president should then be certied by the Board of Canvassersto Congress and not to COMELEC as provided for in Section 18.4 of the Act. 13R.A. 9189 creates a Joint Congressional Oversight Committee (JCOC) composedof Senators and Members of the House of Representatives, empowered to"review, revise, amend and approve the Implementing Rules and Regulations(IRR) promulgated by the COMELEC," 14 and to approve the voting by mail in notmore than three (3) countries for the May 2004 elections and in any countrydetermined by COMELEC. 15 The Court here nds unanimity in holding thatCongress, by vesting itself with the aforesaid powers, has gone beyond the scopeof its constitutional authority. It is a pronouncement that, in my view, can hardlybe susceptible to challenge. The Constitution ordains that constitutionalcommissions such as the COMELEC shall be independent. 16 The COMELEC hasthe constitutional authority to "enforce and administer all laws and regulationsrelative to the conduct of an election" 17 and to promulgate its rules of procedure.18 The role therefore of the JCOC must be understood as being limited only to themonitoring and evaluation of the implementation of the Act 19 pursuant to thepower of Congress to conduct inquiries in aid of legislation. 20In view whereof, I vote to uphold the constitutionality of Republic Act No. 9189allowing absentee voting in the manner expressed therein, but that, as regardsSections 17.1, 19 and 25, I share the unanimous conclusion reached by mycolleagues declaring portions thereof as being unconstitutional.PANGANIBAN, J.:CD Technologies Asia, Inc. 2016

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"Constitutions are designed to meet not only the vagaries of

contemporary events. They should be interpreted to cover even futureand unknown circumstances. It is to the credit of its drafters that aConstitution can withstand the assaults of bigots and indels, but at thesame time bend with the refreshing winds of change necessitated byunfolding events." 1

The deliberations on this case have been blessed with extensive and exhaustivediscussions by the Justices. The ponencia itself as well as the separate, theconcurring and the dissenting opinions ably written by my esteemed colleaguesscrutinized its many aspects and ramications. Their thoroughness andscholarship helped distill the issues and enabled the Court to arrive at aninformed judgment.It is quite clear that there is unanimity of opinion in declaring unconstitutionalthose portions of RA 9189 (1) granting Congress oversight powers over theComelec Implementing Rules and Regulations (IRR); and (2) giving Comelecauthority to proclaim presidential and vice-presidential winners a powerexpressly lodged in Congress by the Constitution.Obviously, however, there is diversity of opinion on the question of whetherFilipinos, who have become permanent foreign residents, may be allowed to voteafter executing an adavit showing an intent to reside in the Philippines withinthree years therefrom.I will no longer belabor the penetrating legal pros and contras discussed by thejustices in connection with this important issue. Let me just add one more pointin favor of the constitutionality of the aforementioned provision in Section 5(d)of RA 9189. 2 It is a point that is borne, not of strict legalese, but of practicalcommon sense that even lay persons will understand. 3 The Information Age hasshrunk the world, enabled Filipinos abroad to keep abreast with current events inour country, and thus empowered them to be able to vote wisely for our nationalleaders.Qualicationsof VotersLet me start my explanation of my position by recalling that our Constitution 4requires voters to possess, on the day of the election, a minimum of threequalities or attributes relating to (1) citizenship, (2) age and (3) residence. Inaddition, our fundamental law says that the citizen must "not otherwise bedisqualied by law" from voting.

On the rst, only those who owe allegiance to a country have the right to selectits leaders and determine its destiny. This is a worldwide phenomenon. Thus,only Filipinos may vote in the Philippines; aliens cannot. By the same token, onlyAmericans may vote in America, 5 and only Indians may vote in India. 6Th e second qualication, age, assures that only those who have reached thenatural mental maturity are enfranchised to choose independently and sensibly.Hence, only those who have reached 18, the age of majority, are allowed to vote;only those capacitated by the law to enter into binding obligations and contractsCD Technologies Asia, Inc. 2016

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are allowed to elect the persons who would make and execute the law.

On the third, residence of at least one year in the Philippines of which sixmonths must be in the place where the ballot is cast is required of voters. Inour case today, this residence requirement is the crux or centerpoint. Irespectfully submit that to understand how to interpret this qualication inrelation to the Overseas Absentee Voting Law, it is necessary to inquire into thereason for requiring it as a condition for surage. Why does the Constitutioninsist on residence as a prerequisite to voting?Reason forResidence RequirementI believe that, traditionally, the law requires residence 8 because presence in acertain locality enables a person to know the needs and the problems of thatarea. Equally important, it also makes one become acquainted with thecandidates their qualications, suitability for a particular oce and platform ofgovernment.Thus, the fundamental law requires, not just that there be a minimum of oneyear residence in the country, but also that six months of that period be spent inthe place where the ballot is to be cast. Such detailed requirement will hopefullygive the voters sucient knowledge about a specic town as to help themchoose its local ocials wisely, quite apart from understanding enough of theentire country so as to prepare to vote sagaciously for national leaders.The Supreme Court had occasions to discuss this common-sense reason for theresidence requirement, in this wise:"We stress that the residence requirement is rooted in the desire thatocials of districts or localities be acquainted not only with the metes andbounds of their constituencies but, more important, with the constituentsthemselves their needs, diculties, aspirations, potentials for growthand development, and all matters vital to their common welfare. Therequisite period would give candidates the opportunity to be familiar withtheir desired constituencies, and likewise for the electorate to evaluate theformer's qualications and tness for the oces they seek." 9"[T]he purpose of the residency requirement [is] to ensure that theperson elected is familiar with the needs and problems of hisconstituency[.]" 10

Although the foregoing discussions were used to justify the residence

requirement vis--vis candidates for elective public oces, I believe that theirrationale can easily and analogically t the needs of voters as well.The Essenceof My OpinionThe dening essence of my position is this: in the midst of the now available eage communications facilities, actual presence in the Philippines is no longerindispensable to make discerning Filipinos know the problems of their countryand to decide who among candidates for national positions deserve theirmandate.CD Technologies Asia, Inc. 2016

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Indeed, the Information Age has given overseas Filipinos convenient means toinform themselves of our country's needs, as well as of the suitability ofcandidates for national oces. After all, many of them live abroad, not becausethey want to abandon their land of birth, but because they have beenconstrained to do so by economic, professional, livelihood and other pressingpursuits. Ineluctably, they remit their hard-earned money to help their relativeshere and their country as a whole.Verily, their easy access to Philippine mass media keep them constantly aware ofhappenings in their native country. National dailies and other periodicals are soldregularly in Filipino enclaves in foreign shores. Several local and communitypublications in these areas cater mainly to Filipino expatriates, publishing newsand opinions not only about their alien neighborhoods, but also quite extensivelyabout their homeland. 11So, too, Philippine news and magazine-type broadcasts are available to overseasFilipinos on a daily basis over cable television, giving them the feeling and theand intellectual status of being home. Interactive TV talk shows are nowroutinely participated in via long distance phones and cell phone text messagesby people everywhere. Even more conveniently available are the websites ofmajor dailies. Whatever news and views they print locally are instantlyaccessible everywhere on earth via the Internet.Truly, the e-age has opened windows to the Philippines in a pervasive andthorough manner, such that actual presence in the country is no longer neededto make an intelligent assessment of whom to vote for as our national leaders.I make this emphasis on national ocials, because the Absentee Voting Lawallows overseas voting only for President, Vice President, senators and party-listrepresentatives. 12 This distinction is important, because the informationavailable through websites and other modern media outlets is addressed mainlyto national concerns.To insist that only those who can demonstrate actual physical residence in thecountry for one year or only those who complied with the more dicult-tounderstand concept of domicile would be entitled to vote would be to clingadamantly and unreasonably to a literal interpretation of the Constitutionwithout regard for its more liberating spirit or rationale. Such insistence wouldresult in rendering inutile any meaningful eort to accord surage to Filipinosabroad. 13 Such proposition would make the constitutional interpretationanachronous in the face of the refreshing and pulsating realities of the world. Inmy view, it would be thoroughly unreasonable to expect foreign-based Filipinosto come back here for one year every three years and abandon their jobs just tobe able to comply literally with the residential requirement of surage.On the other hand, the advances of science and technology especially in theelds of computerization, miniaturization, digitization, satellite communicationsand ber optics has so expanded the capabilities of our brothers and sistersabroad as to enable them to understand our national needs, without having to sitback and stay here for one continuous year. They are now able to help us bridgethose needs, not only by remitting their hard-earned currency, but also byassisting locally based Filipinos to choose national leaders who will steer thecountry in the perilous new paths of development and peace.CD Technologies Asia, Inc. 2016

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ConclusionIn sum, I respectfully submit that physical presence in the country is no longerindispensable to arm Filipinos abroad with sucient information to enable themto vote intelligently. The advent of the Information Age and the globalization ofknowledge have empowered them to know enough about the Philippines toenable them to choose our national ocials prudently and, in the process, tohave a signicant voice in the governance of the country they love and cherish.I maintain that the constitutional provision on voter residence like every otherlaw must be interpreted "not by the letter that killeth but by the spirit thatgiveth life." As heralded by the quotation from Taada v. Angara cited at theopening of this Opinion, our Constitution should be construed so it may "bendwith the refreshing winds of change necessitated by unfolding events."Finally, may I stress that when the reason for the law is accomplished, then thelaw itself is fullled. Since the law requiring residence is accomplished by theglobalization of information, then the law itself is fullled. It is time to empowerour overseas brothers and sisters to participate more actively in nation buildingby allowing them to help elect our national leaders.WHEREFORE, I vote to uphold the constitutionality of Section 5 (d) of RA 9189. Ialso vote to declare as unconstitutional portions of Section 18.5 thereof insofaras they authorize Comelec to proclaim presidential and vice-presidential winners;and of Sections 17.1, 19 and 25 insofar as they subject to congressionaloversight, review and approval the implementation of voting by mail and theImplementing Rules and Regulations of Comelec.CARPIO, J.: concurringThe case before this Court is historic and momentous. Historic because the rightof surage, which through the centuries painstakingly evolved into universalright, 1 stands at the crossroads in this country. Should the right of suragecontinue its march forward and reach overseas Filipinos, or should this Court turnback this historic march here at our gates?Momentousbecause the core issue isthe enfranchisementordisenfranchisement of some 7 million overseas Filipinos. The annualcontribution of these overseas Filipinos to the national economy, in terms ofhard-earned foreign exchange remitted through the banking system, equalsalmost 50 percent of the country's national budget. 2 The total remittances,recorded and unrecorded, of overseas Filipinos may even reach 18 percent ofGNP, almost the same percentage that agriculture at 20 percent contributes tothe GNP. 3The nation has hailed the overseas Filipinos as the modern-day heroes andsaviors of the economy. Their blood, toil, tears and sweat have propped up thePhilippine peso through all the recurring nancial crises that have battered thenation. Although scattered in foreign lands across the globe, these overseasFilipinos keep abreast with developments in the Philippines through the Internet,4 cable and satellite TV, and even texting.

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In recognition of the immense contribution of overseas Filipinos to the nation,

the framers of the 1987 Constitution introduced the absentee voting system,novel in this country, purposely to enfranchise the overseas Filipinos.Commissioner Blas Ople, the former Minister of Labor who started deployingabroad large numbers of Filipino workers, triggered the introduction of theabsentee voting with this discourse during the deliberations of the ConstitutionalCommission:MR. OPLE: . . .In a previous hearing of the Committee on Constitutional Commissionsand Agencies, the Chairman of the Commission on Elections, RamonFelipe, said that there was no insuperable obstacle to making eective theright of surage for Filipinos overseas. Those who have adhered to theirFilipino citizenship notwithstanding strong temptations are exposed toembrace a more convenient foreign citizenship. And those who on theirown or under pressure of economic necessity here, nd that they haveto detach themselves from their families to work in other countries withdenite tenures of employment. Many of them are on contractemployment for one, two, or three years. They have no intention ofchanging their residence on a permanent basis, but are technicallydisqualied from exercising the right of surage to their countries ofdestination by the residential requirement in Section 1 which says:Surage shall be exercised by all citizens of the Philippines nototherwise disqualied by law, who are eighteen years of age orover, and who shall have resided in the Philippines for at least oneyear and in the place wherein they propose to vote for at least sixmonths preceding the election.I, therefore, ask the Committee whether at the proper time they mightentertain an amendment that will make this exercise of the right to voteabroad for Filipino citizens an eective, rather than merely a nominal rightunder this proposed Constitution.xxx xxx xxxIt gives me scant comfort thinking of about two million Filipinos whoshould enjoy the right of surage, at least a substantial segment of theseoverseas Filipino communities. The Committee, of course, is aware thatwhen this Article of the Constitution explicitly and unequivocally extendsthe right of eective surage to Filipinos abroad, this will call for a logisticalexercise of global proportions. In eect, this will require budgetary andadministrative commitments on the part of the Philippine government,mainly through the COMELEC and the Ministry of Foreign Aairs, andperhaps, a more extensive elaboration of this mechanism that will be putin place to make eective the right to vote. Therefore, seeking shelterin some wise jurisprudence of the past may not be sucient tomeet the demands of the right of surage for Filipinos abroadthat I have mentioned. But I want to thank the Committee forsaying that an amendment to this eect may be entertained atthe proper time. 5 (Emphasis and italics supplied)

From the start, the framers of the Constitution knew that the absentee votingsystem for overseas Filipinos would have to be an exception to the doubleCD Technologies Asia, Inc. 2016

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residency requirement in Section 1, Article V of the Constitution. This was the

basic premise for introducing an express provision on absentee voting in theConstitution. Unless there is such an exception in the Constitution itself,overseas Filipinos could never vote as absentee voters in view of the doubleresidency requirement in Section 1. Because of this double residencyrequirement, Congress could not enfranchise through ordinary legislationoverseas Filipinos who do not comply with the double residency requirement.Thus, the framers of the Constitution, by an overwhelming vote of 28 in favorand only one against, approved Section 2, Article V of the Constitution, asfollows:SEC. 2. The Congress shall provide a system for securing the secrecyand sanctity of the ballot as well as a system for absentee voting byqualied Filipinos abroad. (Italics supplied)

After sixteen long years of debates, Congress nally enacted RA No. 9189 (theOverseas Absentee Voting Act of 2003), precisely to implement theconstitutional mandate to enfranchise overseas Filipinos. Petitioner now asks theCourt to strike down this law as unconstitutional mainly because it enfranchisesoverseas Filipinos who do not comply with the double residency requirement inSection 1, Article V of the 1987 Constitution, as follows:SEC. 1. Surage may be exercised by all citizens of the Philippines nototherwise disqualied by law, who are at least eighteen years of age, andwho shall have resided in the Philippines for at least one year and in theplace wherein they propose to vote for at least six months immediatelypreceding the election. No literacy, property, or other substantiverequirement shall be imposed on the exercise of surage. (Italicssupplied)

Like the 1973 Constitution, Section 1, Article V of the 1987 Constitution imposesa double residency requirement before a Filipino 18 years or over may exercisethe right to vote, namely: (1) one year residence in the Philippines; and (2) sixmonths residence in the locality in the Philippines where he proposes to vote.The threshold issue is whether overseas Filipinos should comply with the doubleresidency requirement in Section 1 of Article V to vote under the absentee votingsystem in Section 2 of the same Article. Stated another way, the issue is whetheroverseas Filipinos, many of whom are not registered voters in the Philippines,should come home twice to the Philippines just so they could vote in a foreigncountry as absentee Filipino voters. The rst time they should come home is oneyear before the elections to establish residence in the Philippines. The secondtime is six months before the elections to establish residence in the locality inthe Philippines where they propose to vote.Did the framers of the 1987 Constitution intend to inict on overseas Filipinossuch a burdensome requirement as an essential feature of the absentee votingsystem in Section 2 of Article V? To require absentee voters to comply with thedouble residency requirement is to impose an impractical and even an impossiblecondition to the exercise of the constitutional right to vote. In the rst place, thesecond residency requirement of establishing residence in a locality in thePhilippines where the voters propose to vote is impossible to comply sinceoverseas Filipinos will obviously not vote in any locality in the Philippines.CD Technologies Asia, Inc. 2016

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Imposing the double residency requirement makes the absentee voting an emptyright of overseas Filipinos. Certainly, the wise framers of the Constitution wereincapable of such absurd scheme.If the framers of the Constitution did not intend such an absurd requirement,should this Court now impose such absurdity on overseas Filipinos? How manyoverseas Filipinos would comply with the double residency requirement just tovote in Presidential and Senatorial elections? How much will overseas Filipinosspend just to come home twice within 12 months just so they could vote whenthey go back abroad?The concept of absentee voting negates a residency requirement in the countryof citizenship of the voter. By denition, an absentee voter is a non-residentvoter. Obviously, the double residency requirement in Section 1 of Article Vapplies only to resident or non-absentee Filipino voters. To impose the doubleresidency requirement on absentee Filipino voters is an egregious anomaly for itwill require absentee Filipino voters to comply with the same residencyrequirement imposed on resident or non-absentee Filipino voters. If absenteeFilipino voters are required to reside in the Philippines just like resident or nonabsentee Filipino voters, why create an absentee voting system for overseasFilipinos in the rst place? Applying the double residency requirement onabsentee voters will render the provision on absentee voting in Section 2 asurplusage, a constitutional mandate devoid of meaning.Even without the absentee voting provision in Section 1, Congress can validlyenact a law allowing resident or non-absentee Filipino voters those whocomply with the double residency requirement to vote abroad in Philippineembassies or consulates. There is no constitutional prohibition on registeredFilipino voters who comply with the double residency requirement to cast theirballots at a Philippine embassy or consulate abroad where they happen to be onelection day. If the absentee voting system in Section 2 were for the benet onlyof resident or non-absentee Filipinos, then there would be no need to provide forit in the Constitution.The framers of the 1987 Constitution specically introduced the absentee votingprovision in Section 2 precisely to enfranchise overseas Filipinos who do notcomply with the double residency requirement in Section 1. Without theabsentee voting provision in Section 2, Congress could not validly enact a lawenfranchising overseas Filipinos who do not comply with the double residencyrequirement. As succinctly explained by Commissioner Christian Monsod duringthe deliberations in the Constitutional Commission:MR. MONSOD: . . . The reason we want absentee voting to be in theConstitution as a mandate to the legislature is that there could beinconsistency on the residence rule if it is just a question of legislation byCongress. So, by allowing it and saying that this is possible, thenlegislation can take care of the rest. 6

Evidently, the framers of the Constitution intended the absentee voting

provision as an exception to the double residency requirement.The question of how a Filipino, who has become a permanent resident orimmigrant in a foreign country, may reacquire his domicile or residence in theCD Technologies Asia, Inc. 2016

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Philippines is a matter for ordinary legislation. The reacquisition of the Philippine

domicile or residence that a Filipino had lost is within the power of Congress tolegislate. The Constitution does not dene what domicile or residence means.There is also no constitutional prohibition against the enactment of legislationprescribing the reacquisition of domicile or residence in the Philippines, just asthere is no constitutional prohibition against the enactment of legislationprescribing the reacquisition of Philippine citizenship.

Thus, RA No. 8171 7 allows a former natural-born Filipino who became a foreignerto reacquire Philippine citizenship by ling a simplied administrative petitionand taking an oath of allegiance to the Philippines. Section 5(d) of RA No. 9189,which prescribes the reacquisition of residence by a Filipino through theexecution of an adavit stating he is resuming residence in the Philippines, issimilarly well within the power of Congress to enact and is thus constitutional.While the absentee voting system is new in this country, it is well established inother countries. In the United States, all U.S. citizens 18 years or over who resideoutside the United States during an election are eligible to vote as absenteevoters. 8 The trend in the United States is to allow "no-excuse" absentee voting, 9that is, a qualied or registered voter may avail of absentee voting for anyreason. Absentee voting is understood in other jurisdictions as voting by aqualied or registered voter without anyresidency requirement. In the presentcase, petitioner wants a double residency requirement imposed on absenteeFilipino voters.The right of surage is the cornerstone of a representative government like thatestablished in the 1987 Constitution. A representative government is legitimatewhen those represented elect their representatives in government. The consentof the governed is what stamps legitimacy on those who govern. This consent isexpressed through the right of surage. It is a precious right for which manyhave fought and died so that others may freely exercise it. A government thatdenies such right on imsy or meaningless grounds does so at its peril.The International Covenant on Civil and Political Rights, to which the Philippinesis a signatory, requires the Philippines to respect the people's right of surage"without unreasonable restrictions." Thus, Article 25 of the Covenant provides:Article 25. Every citizen shall have the right and the opportunity, withoutany of the distinctions mentioned in Article 2 and without unreasonablerestrictions;(a) To take part in the conduct of public aairs, directly or through freelychosen representatives;(b) To vote and to be elected at genuine periodic elections which shall beby universal and equal surage and shall be held by secret ballot,guaranteeing the free expression of the will of the electors;xxx xxx xxx. (Emphasis and italics supplied)

The Philippines is duty bound under international law to comply in good faithwith its treaty obligations under the Covenant. To require overseas Filipinos toreturn to the Philippines twice within 12 months so they may vote abroad asCD Technologies Asia, Inc. 2016

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absentee voters is plainly an unreasonable restriction outlawed by the Covenant.

When the framers of the Constitution introduced absentee voting in Section 2 ofArticle V, they were aware of the country's obligations under the Covenant. Intheir discussions on the death penalty, human rights and the Bill of Rights, theframers of the Constitution often referred to the country's obligations under theCovenant. 10 It is inconceivable that the framers intended overseas Filipinos tocomply with the double residency requirement, an unreasonable restriction thatwould patently violate Article 25 of the Covenant and practically negate theoverseas Filipinos' right of surage.There are some 40 countries in the world, including our Asean neighborsIndonesia and Thailand, which grant their overseas citizens the right to votewhile residing abroad. 11 The inexorable direction of history is to bestow on everyperson the right to vote wherever he may be in this global village. Moderntechnology and telecommunications are making this happen even now. 12 Thosewho insist on the double residency requirement as an essential condition forabsentee voting by overseas Filipinos are turning back in vain the clock ofhistory.The framers of the Constitution expressly mandated Congress to enact anabsentee voting law to enfranchise overseas Filipinos. Congress has enacted sucha law after a long and dicult struggle by overseas Filipinos who patientlywaited for 16 years for the enactment of the law. That struggle is now part of theworld history of the evolution of the right of surage as a universal right. Nofrivolous, absurd or impractical conditions should stand in the way ofenfranchising overseas Filipinos whose contribution to the national economy isimmeasurable.Like the framers of the 1987 Constitution and the members of Congress, I voteto enfranchise our 7 million overseas Filipinos. This is an explicit constitutionalmandate that the Court, like Congress, must honor and respect. I thereforeconcur entirely with the ponencia of Justice Ma. Alicia Austria-Martinez.CARPIO MORALES, J.: concurringIn the assault against the validity of certain provisions of the newly enactedRepublic Act No. 9189 or The Overseas Absentee Voting Act of 2003, the pivotalissue centers on the constitutionality of the grant, under Section 5(d) of the law,of voting rights to Filipino immigrants or permanent residents in foreigncountries, conditioned on their execution of an adavit declaring that they shallresume actual physical permanent residence in the Philippines within three yearsfrom the approval of their registration as absentee voters.The controversy arises because the Constitution prescribes, among otherrequirements for the exercise of surage, that a Filipino citizen must haveresided in the Philippines for at least one year and in the place where he is tovote for at least six months immediately preceding the election. 1Residence for purposes of ascertaining the right to vote and be voted for in publicoce has been jurisprudentially interpreted to mean domicile which is anindividual's permanent home or the place to which, whenever absent forbusiness or pleasure, one intends to return, the domicile of a person beingCD Technologies Asia, Inc. 2016

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dependent on facts and circumstances disclosing intent. 2

While there is no question that Filipinos who are temporarily abroad for variousreasons are still qualied to vote for they still retain their domicile in thePhilippines, immigrants are generally deemed to be permanent settlers of thecountry where they are such, 3 thereby giving rise to the conclusion that theyhave relocated their domicile elsewhere.Republic Act No. 9189 was passed by mandate of the Constitution that "TheCongress shall provide a system for securing the secrecy and sanctity of theballot as well as a system for absentee voting by qualied Filipinos abroad" 4 butthis did not exempt the mechanics for absentee voting from the reach of thebasic requirements imposed by the Constitution on surage. It is clear from thedeliberations of the members of the Constitutional Commission that their intentwas to limit absentee voting to Filipinos abroad who have all the qualicationsand none of the disqualications of a voter, including the residency requirement.A Filipino who is or has already become an immigrant or permanent resident inanother country can, I am convinced, by a mere sworn undertaking to return tothe Philippines for the purpose of establishing permanent residence here withinthe statutorily xed three-year period, be allowed by law to vote in Philippineelections without transgressing the rules laid down by the Constitution onsurage. For a Filipino immigrant or permanent resident of a foreign countryunquestionably has the Philippines as his domicile of origin, that which heacquires at birth and is the domicile of his parents or of the person or personsupon whom he was legally dependent at the time of his birth. 5 A domicile, onceacquired, whether by origin or choice, continues until a new domicile is actuallyacquired. 6 And to acquire a new domicile by choice, the following must concur:(1) residence or bodily presence in the new locality; (2) an intention to remainthere (animus manendi); and (3) an intention to abandon the old domicile(animus non revertendi). 7It is my view that the adavit executed in accordance with Section 5(d) of R.A.9189 by a Filipino immigrant or permanent resident of another countryexpressing his intent to resume physical permanent residence in the Philippinesis an eloquent proof of his intention not to abandon his domicile of origin in thePhilippines. It is a statement under oath of what a Filipino seeks to do for thefuture of his membership in a political community. Why should this adavit bediscredited on the mere speculation that the immigrant might not fulll hisundertaking to return to the Philippines for good? If Filipinos who are temporarilyresiding in foreign countries are accorded full faith and credit as to theirdomiciliary ties no matter how indenite their absence from the Philippines,what more in the case of Filipino immigrants who have formally declared theirintent to settle in their homeland?While he may have stayed on a more or less permanent basis in the host countrywhich conferred on him the status of an immigrant and may be animated withall the desire to remain there, until and unless a Filipino immigrant hadcategorically expressed by words or by deeds his intent to no longer return to hisdomicile of origin, no conclusion can be reached as to a change in domicile fromone of origin to one of choice, hence, the old domicile subsists. For at the core ofevery Filipino immigrant's being is the fact of his Philippine citizenship. He is,CD Technologies Asia, Inc. 2016

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after all, still a Filipino.

The acquisition of a new domicile must be completely perfected by a concurrenceof the factum of removal to a new locality, the animus to remain there, andabandonment of and intent not to return to the former domicile, for if there is apurpose to return, whether secret or open, no loss or change of domicile willresult. 8Two types of Filipino immigrants must then be distinguished. The rst, a Filipinowho has opted not to execute the required adavit under Section 5(d) of R.A.9189, is clearly disqualied to exercise surage for he has manifested theanimus non revertendi with respect to his domicile in the Philippines, therebyeectuating his acquisition of a new domicile. The second, a Filipino who declareshis wish to be reunited with his homeland has, without doubt, shown that hisresidence of origin remained unchanged and so he is entitled to vote under theOverseas Absentee Voting Law. Therefore, until that opportunity to execute theadavit has been totally foregone by a Filipino immigrant, in the absence of anyconclusive evidence of his acquisition of a new domicile, the Filipino immigrant'sdomicile of origin is intact, his presence abroad and his desire to remain thereinnotwithstanding.

I, therefore, vote in favor of the constitutionality of Section 5(d) of R.A. 9189. I

vote to declare as unconstitutional parts of Section 18.5 of the subject lawinsofar as they authorize COMELEC to proclaim presidential and vice-presidentialwinners; and of Sections 17.1, 19 and 25 insofar as they are subject tocongressional oversight, review and approval the implementation of voting bymail and the Implementing Rules and Regulations of COMELEC.AZCUNA, J.: concurringI concur with the ponencia, but wish to state an additional basis to sustainSection 5 (d) of Republic Act No. 9189, which provides:Sec. 5. Disqualications. The following shall be disqualied from votingunder this Act:xxx xxx xxxd) An immigrant or a permanent resident who is recognized assuch in the host country, unless he/she executes, uponregistration, an adavit prepared for the purpose by theCommission declaring that he/she shall resume actualphysical permanent residence in the Philippines not later thanthree (3) years from approval of his/her registration underthis Act. Such adavit shall also state that he/she has notapplied for citizenship in another country. Failure to returnshall be cause for the removal of the name of the immigrantor permanent resident from the National Registry ofAbsentee Voters and his/her permanent disqualication tovote in absentia.

have thereby abandoned their Philippine domicile of origin and replaced it with aCD Technologies Asia, Inc. 2016

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domicile of choice in a foreign country. This may indeed be true, but with theexecution of the adavit provided for under Section 5 (d) aforementioned, theaant expressly states an abandonment of said domicile of choice. The legaleect of this expression is to revive the domicile of origin. For unlike a domicileof choice, which requires both intention and physical presence to be establishedor maintained, the domicile of origin can be revived by an intention properlyexpressed. Thus, the abandonment of the present domicile of choice, by theexecution of the adavit, operates to revive the domicile of origin to replace it,because of the principle that no person can be without a domicile at any time.The moment a foreign domicile is abandoned, the native domicile is reacquired.

When a person abandons his domicile of choice, his domicile of origin

immediately reverts and remains until a new domicile of choice is established. 2On the abandonment of a domicile of choice, the domicile of origin immediatelyreverts, without regard to any denite intent to return to such original domicile,provided there is a denite intent nally to abandon the acquired domicile ofchoice. 3Through the execution of the adavit, the aant does the operative act thatmakes said aant once more a Philippine domiciliary. The requirement ofresuming actual physical presence within three (3) years is only a test of suchintention, but is not needed to eect the change or reversion of domicile. If theaant does not resume the residence physically within said period, then theintent expressed in the adavit is defective and the law will deem it inoperative,thereby allowing removal of aant's name from the National Registry ofAbsentee Voters.PUNO, J.: concurring and dissentingWith all due respect, I would like to oer my humble views on the constitutionalissues presented by the petitioner, viz:A. Does Section 5(d) of Rep. Act No. 9189 allowing the registrationof voters who are immigrants or permanent residents in othercountries by their mere act of executing an adavitexpressing their intention to return to the Philippines, violatethe residency requirement in Section 1 of Article IV of theConstitution?B. Does Section 18.5 of the same law empowering the COMELEC toproclaim the winning candidates for national oces and partylist representatives including the President and the VicePresident violate the constitutional mandate under Section 4,Article VII of the Constitution that the winning candidates forPresident and Vice-President shall be proclaimed as winners byCongress?C. May Congress, through the Joint Congressional OversightCommittee created in Section 25 of Rep. Act No. 9189,exercise the power to review, revise, amend, and approve theImplementing Rules and Regulations that the Commission onElections shall promulgate without violating the independence

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of the COMELEC under Section 1, Article IX-A of the

Constitution?To start o, let me stress the signicance of the case at bar. Rep. Act No. 9189, 1otherwise known as "The Overseas Absentee Voting Act of 2003" is a historicattempt to translate to reality a long awaited dream: the enfranchisement ofmillions of overseas Filipinos. Undoubtedly, the eorts of Congress to give eshto Section 2, Article V of the 1987 Constitution mandating it to devise "a systemfor absentee voting for qualied Filipinos abroad," deserves the highestcommendation. However, Rep. Act No. 9189 poses far reaching constitutionalissues that merit more than an invocation of abstract legal principles or asimplistic construction of the Constitution. For one, the petition aects the valueof the right of surage, a right that is the cornerstone of our democraticgovernment. It is the responsibility of this Court to strike a balance between theneed to expand the right of surage in favor of those who cannot exercise it andthe need to prevent the dilution of the right of surage of those alreadyexercising it. For another, the petition compels this Court to dene the extentand the limits of Congress' oversight powers or legislative veto over "subordinatelegislations" or the rules and regulations promulgated by administrative agenciesof government. Undoubtedly, this oversight power is indispensable for Congressto discharge its broad power to legislate. Thus, it again behooves this Court todraw the precise parameters of the oversight power sought to be exercised byCongress to preserve the delicate balance of powers allocated to the dierentbranches of our government in the Constitution.AcSHCD

Prescinding from these premises, let me discuss the issues in seriatim.

A.Does section 5 (d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987Constitution?Petitioner submits that Section 5, par. (d) of Rep. Act No. 9189 isunconstitutional for it allows immigrants or permanent residents of foreigncountries to vote for President, Vice-President, Senators, and party-listrepresentatives by mere execution of an adavit stating that: (a) he shallresume actual, physical, permanent residence in the Philippines not later thanthree (3) years from approval of his registration; and (b) that he has not appliedfor citizenship in another country, viz:Sec. 5. Disqualications. The following shall be disqualied from votingunder this Act.xxx xxx xxx(d) An immigrant or a permanent resident who is recognized as such inthe host country, unless he/she executes, upon registration, an adavitprepared for the purpose by the Commission declaring that he/she shallresume actual physical permanent residence in the Philippines not laterthan three (3) years from approval of his/her registration under this Act.Such adavit shall also state that he/she has not applied for citizenship inanother country. Failure to return shall be cause for the removal of thename of the immigrant or permanent resident front the National Registryof Absentee Voters and his/her permanent disqualication to vote inCD Technologies Asia, Inc. 2016

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absentia. (italics ours)

Petitioner also contends that section 2, Article V of the 1987 Constitution 2 limitsthe authority of Congress to provide a system for absentee voting to thoseFilipinos who are temporarily absentin the Philippines but otherwise satisfy therequirements under Section 1 thereof, including the one year residence in thePhilippines and six months residence in the place where they propose to vote. 3Citing our ruling in Caasi v. Court of Appeals, 4 the petitioner avers that a Filipinowho is an acknowledged immigrant or permanent resident of a foreign countrydoes not possess the necessary residence requirements as he is deemed to havealready abandoned his domicile in the Philippines. He alleges that the challengedprovision amends or alters the residence requirements by granting "conditional"residence qualication to an immigrant or permanent resident or through theexecution of an adavit. 5The majority, thru our esteemed colleague, Madam Justice Martinez, rules thatSection 2, Article V of the 1987 Constitution mandating Congress to devise asystem for overseas absentee voting operates as an exception to the residencerequirements as the members of the Constitutional Commission manifested aclear intent "to enfranchise as much as possible all Filipino citizens abroad whohave not abandoned their domicile of origin," viz: 6By the doctrine of necessary implication in statutory construction, whichmay be applied in construing constitutional provisions, the strategiclocation of Section 2 indicates that the Constitutional Commissionprovided for an exception to the actual residency requirement of Section1 with respect to qualied Filipinos abroad. The same Commission has ineect declared that qualied Filipinos who are not in the Philippines maybe allowed to vote even though they do not satisfy residencyrequirement in Section 1, Article V of the Constitution. 7 (italics ours)

The majority further holds that if actual physical residence in the Philippines isrequired, "there is no sense for the framers of the Constitution to mandateCongress to establish a system for absentee voting." 8The majority arms our ruling in Caasi v. Court of Appeals 9 that an immigrantor permanent resident of a foreign country is deemed to have relinquished hisresidence in his country of origin. However, it rules that this presumption isoverturned by the execution of the adavit required under the challengedprovision of Rep. Act No. 9189. Allegedly, the adavit is an explicit expressionthat an immigrant or permanent resident has not relinquished his domicile in thePhilippines, to wit:

Contrary to the claim of petitioner, the execution of the adavit itself is

not the enabling or enfranchising act. The adavit required in Section5(d) is not only proof of the intention of the immigrant or permanentresident to go back and resume residence in the Philippines, but moresignicantly, it serves as an explicit expression that he had not in factabandoned his domicile of origin. Thus, it is not correct to say that theexecution of the adavit under Section 5(d) violates the Constitution thatproscribes "provisional registration or a promise by a voter to perform aCD Technologies Asia, Inc. 2016

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condition to be qualied to vote in a political exercise."

To repeat, the adavit is required of immigrants and permanent residentsabroad because by their status in their host countries, they arepresumed to have relinquished their intent to return to this country; thus,without the adavit, the presumption of abandonment of Philippinedomicile shall remain. 10 (italics ours)

The majority further rules that "the act of the immigrant or permanent residentin executing an adavit pursuant to Section 5(d) may be considered as anexpress waiver of his status as an immigrant or permanent resident." Thus, themajority concludes that Section 5(d) of Rep. Act No. 9189 is notunconstitutional.With all due respect, I disagree with the majority. But before discussing thereasons for my dissent, let me put the issue in its proper historical perspective.Surage is an attribute of citizenship 11 and is ancillary to the principle ofrepublicanism enshrined in Section 1, Article II of the 1987 Constitution. 12 Theright of surage, however, is not absolute. No political system in the whole worldhas literally practiced "universal" surage, even among its citizens. 13 The scarlethistory of the right of surage shows that restrictions have always been imposedon its exercise.In England, for instance, surage originated as a political privilege granted toland owners by the monarchs. 14 The grant arose from the theory that in theformation of the state, the people agreed to surrender to the King all politicalsovereignty. In return, the King extended surage to the freeholders as a vestedright. The origin and character of surage in England is chronicled by ChiefJustice Holt in Ashby v. White, et al., 15 viz:The election of knights belongs to the freeholders of the counties, and itis an original right vested in and inseparable from the freehold, and canbe no more severed from the freehold than the freehold itself can betaken away. Before the statute of 8 Hen. 6, ch. 7, any man that had afreehold, though never so small, had a right of voting; but by that statutethe right of election is conned to such persons as have lands ortenements to the yearly value of forty shillings at least, because, as thestatute says, of the tumults and disorders which happened at electionsby the excessive and outrageous number of electors; but still the right ofelection is an original incident to and inseparable from freehold. As forcitizens and burgesses, they depend on the same rights as the knights ofshires dier only as to the tenure; but the right and manner of theirelection is on the same foundation. 16

The economic theory of surage is also evident in the early history of the UnitedStates. The 1787 U.S. Constitution, as originally adopted, did not expresslyprovide the right to vote. 17 The States were left to determine who should havethe right to vote in national as well as local elections. Most States restricted theright of surage to white males over twenty-one years of age with a certainamount of property. 18 Other States also required religious, 19 literacy, and moralqualications. 20Some legal scholars, however, contend that the right of surage is presumedCD Technologies Asia, Inc. 2016

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from the provision of the Constitution guaranteeing each state a "republican

form of government." 21 Veering away from the economic theory of surageprevalent in England, these scholars argue that in forming the state, the peopledid not give up all their sovereign powers but merely delegated the exercise ofthese powers to some chosen representatives. The right of surage is one ofthese delegated powers, viz:The people, in their original sovereign character are the fountainhead ofgovernmental authority, and all the powers necessary to be exercised inthe continued administration of a representative government originatedand are delegated by exertion of their sovereign will. These propositions,founded on necessity, and illustrated by long continued practice, havebecome the received doctrines of the American people . . . The people, inclothing a citizen with the elective franchise for the purpose of securing aconsistent and perpetual administration of the government they ordain,charge him with the performance of a duty in the nature of a public trust,and in that respect constitute him a representative of the whole people.This duty requires that the privilege thus bestowed should be exercised,not exclusively for the benet of the citizen or class of citizens professingit, but in good faith and with an intelligent zeal for the general benet andwelfare of the State . . . 22

As a privilege delegated by the people, a citizen acquires no indefeasible right to

the continuous exercise or enjoyment of the right of surage. "The people of theState, in the exercise of their sovereign power, may disqualify, suspend orentirely withdraw it from any citizen or class of them, providing always thatrepresentation of the people, the essential characteristics of a republicangovernment, be not disregarded or abandoned." 23Following the shift in its theoretical basis, the right of surage was extended tobroader classes of citizens. In 1870, the Fifteenth Amendment was enactedprohibiting the federal government and the states from discriminating on thebasis of "race, color or previous conditions of servitude." In 1920, the NineteenthAmendment was ratied providing that the right of citizens to vote "shall not bedenied or abridged by the United States or by any State on account of sex." In1964, the Twenty-fourth Amendment was adopted providing that the right ofany citizen to vote for President, Vice-President or members of Congress "shallnot be denied or abridged by the United States or any State, by reason of failureto pay any poll tax or other tax." In 1971, the Twenty-sixth Amendment waspassed providing that the right of any citizen eighteen years or older to vote"shall not be denied or abridged by the United States or by any State on accountof age."In our jurisdiction, the right of surage has evolved from a mere statutory rightto a constitutional right. Our rst election law was Act No. 1582, which tookeect on January 15, 1907. We had no elections during the Spanish occupationof the country.Like its foreign counterparts, the qualications for the exercise of the right ofsurage set in Section 14 of Act No. 1582 were elitist and gender-biased. Theright of surage was limited to male citizens twenty-three years of age or overwith legal residence for a period of six months immediately preceding theelection in the municipality in which they exercise the right of surage. WomenCD Technologies Asia, Inc. 2016

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were not allowed to vote for they were regarded as mere extensions of thepersonality of their husbands or fathers, and that they were not t to participatein the aairs of government. 24 But even then, not all male citizens were deemedto possess signicant interests in election and the ability to make intelligentchoices. Thus, only those falling under any of the following three classes wereallowed to vote: (a) those who, prior to the August 13, 1898, held oce ofmunicipal captain, governadorcillo, alcalde, lieutenant, cabeza de barangay, ormember of any ayuntamiento; (b) those who own real property with the valueof ve hundred pesos or who annually pay thirty pesos or more of theestablished taxes; or (c) those who speak, read and write English or Spanish.But apart from possessing the necessary qualications, a voter must not suerfrom any disqualication. We elaborated the reasons for setting disqualicationsfor the exercise of the right of surage in People v. Corral, 25 viz:The modern conception of surage is that voting is a function ofgovernment. The right to vote is not a natural right but it is a rightcreated by law. Surage is a privilege granted by the State to suchpersons or classes as are most likely to exercise it for the public good. Inthe early stages of the evolution of the representative system ofgovernment, the exercise of the right of surage was limited to a smallportion of the inhabitants. But with the spread of democratic ideas, theenjoyment of the franchise in the modern states has come to embracethe mass of the adult male population. For reasons of public policy,certain classes of persons are excluded from the franchise. Among thegenerally excluded classes are minors, idiots, paupers, and convicts.The right of the State to deprive persons of the right of surage byreason of their having been convicted of crime, is beyond question. "Themanifest purpose of such restrictions upon this right is to preserve thepurity of elections. The presumption is that one rendered infamous byconviction of felony, or other base oenses indicative of moral turpitude,is unt to exercise the privilege of surage or to hold oce. The exclusionmust for this reason be adjudged a mere disqualication, imposed forprotection and not for punishment, the withholding of a privilege and notthe denial of a personal right." 26

On November 9, 1933, the Philippine Legislature enacted Act No. 4122 extendingthe right of surage to Filipino women starting January 1, 1935. However, beforethey could exercise their new right, the 1935 Constitution was adopted, onceagain, limiting the right of surage to male citizens, viz:

Surage may be exercised by male citizens of the Philippines not

otherwise disqualied by law, who are twenty-one years of age or overand are able to read and write, and who shall have resided in thePhilippines for one year and in the municipality wherein they propose tovote for at least six months preceding the election. The NationalAssembly shall extend the right of surage to women, if in a plebiscitewhich shall be held for that purpose within two years after the adoptionof this Constitution, not less than three hundred thousand womenpossessing the necessary qualications shall vote armatively on thequestion.CD Technologies Asia, Inc. 2016

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During the deliberations of the Constitutional Convention, it was conceded that

Filipino women were capable of exercising the right of surage. Their right,however, was opposed on the following grounds: (1) there was no populardemand for surage by Filipino women themselves; (2) woman surage wouldonly disrupt family unity; and (3) it would plunge women into the quagmire ofpolitics, dragging them from the pedestal of honor in which they had theretoforebeen placed. 27 Thus, in its report to the President of the Convention onSeptember 24, 1934, the Committee on Surage said:The committee refrains from stating in this report the reasons on which itbases its decision to withdraw the right of surage from the women andwill merely say that the principal idea in the minds of the members not infavor of extending surage to women was that the sweet womanliness ofthe Philippine women should be projected from political strife and passionin order that sweet home may not lose any of its sweetness. 28

The proponents of woman surage in reply argued that it would be unfair to

deprive Filipino women of the right of surage already granted to them by thelegislature without giving them the chance to prove whether they deserved it ornot. They also submitted that the right would make them more interested in themanagement of the aairs of government and that "it was necessary as amatter of justice to extend the frontiers of our democracy to our women whohad labored hard side by side with our men for the progress and development ofthe country." 29 In a last ditch attempt to save the cause of woman surage,women leaders distributed a petition to individual delegates that reads:We, the undersigned, duly elected representatives of women who believein the justice and wisdom of the enfranchisement of the Filipino women,protest most solemnly against women being deprived of the vote in theConstitution of the Commonwealth and against any change in theexistent Law, No. 4112, passed by the Ninth Philippine Legislature onNovember ninth, 1933, and signed by Governor-General Frank Murphy onDecember seventh, 1934.We call the attention of the Constitutional Assembly and the Legislature tothe plea for liberty made before the Congress and the President of UnitedStates for thirty-seven years by the Filipinos; a plea based on the fact thatwe are a liberty-loving people equipped and capable of self-government.Such government cannot exist "half-slave and half-free." The women ofthis Christian land, serene in the knowledge that in peace or war theyhave never failed their men or their country, in this crucial hour of therealization of the sacrice and devotion of the years, insist upon theirpolitical recognition and their share in the triumph of the cause of liberty.It is not a matter of plebiscite nor specic numbers. It is a right earned,deserved and therefore claimed. It is not a matter of sex. In a democraticgovernment all qualied citizens, men and women alike, can and shouldmake their valuable contribution in deciding what their community willundertake to do through its government, by what means, and throughwhat ocials.Under the law women suer penalties, are summoned before the courtsby law laws they have had no voice in making and pay taxes."Taxation without representation is tyranny" and more so in 1934 than inCD Technologies Asia, Inc. 2016

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1776.So condent of the unalterable righteousness of this cause, to you,gentlemen of the Constitutional Assembly, we appeal for justice believingand knowing that our cause is a just one, and that our rights have beenwon thru years of sacrice, devotion and service to our common cause the cause of men and women alike the welfare and progress of ournative land the Philippines. 30

In the end, a compromise was reached limiting the right of surage to malecitizens and leaving the issue of women surage for the women to decide. In theplebiscite held on April 30, 1937, more than three hundred thousand womenvoted for woman surage. Thenceforth, Filipino women were allowed to vote,thus, paving the way for women participation in the government.To broaden the mass base of voters, the 1935 Constitution lowered the agerequirement from 23 years to 21 years. The literacy requirement was alsorelaxed. It is to be noted that from the opening days of the Convention, therewas a prevalent sentiment among the delegates to bar illiterates from exercisingthe right of surage. It was proposed that only those who can read and writeEnglish, Spanish, or other local dialects should be allowed to vote. This proposalwas defeated for the drafters felt that while the ability to read and write wasnecessary, 31 the specication of any language or dialect would be discriminatoryagainst the Mohammedans:It is discriminatory against a respectable minority of the population of thePhilippines. It would serve to discriminate against the Mohammedanpopulation of the Philippines for which I am one of the humblerepresentatives. It is the opinion of this Convention, I think, toemancipate, to enfranchise our backward elements, especially theMohammedan population. And you would like to curtail that right and thatprivilege by inserting a provision that only those who can read and writeeither English, Spanish, or any of the local dialects shall be allowed tovote. This amendment would preclude the Mohammedans because theirArabic writing is not included under local dialects. Because when you say,local dialects, you refer to the dialect and not to the system of writing.The system of writing is either Arabic or Roman. In view of this fact, Mr.President, I hope that you will be liberal and tolerant enough to reject thisproposed amendment because it is unnecessary and because it isdiscriminatory. 32

Furthermore, the 1935 Constitution removed the property qualications under

Act No. 1582. We explained the reason for this removal in Maquera v. Borra, 33viz:. . . property qualications are inconsistent with the nature and essenceof the republican system ordained in our constitution and the principle ofsocial justice underlying the same, for said political system is premisedupon the tenet that sovereignty resides in the people and all governmentauthority emanates from them, and this, in turn, implies necessarily thatthe right to vote and to be voted for shall not be dependent upon thewealth of the individual concerned, whereas social justice presupposesequal opportunity for all, rich and poor alike, and that, accordingly, noperson shall by reason of poverty, be denied the chance to be elected toCD Technologies Asia, Inc. 2016

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the public oce. . .

34

In sum, the 1935 Constitution gave a constitutional status to the right of

surage. Thus, surage is not anymore a privilege granted by the legislature, buta right granted by the sovereign people to a denite portion of the populationpossessing certain qualications. To be sure, the right of surage was still subjectto regulation by the legislature but only in accordance with the terms of theConstitution.SDHETI

The march towards liberalization of the right of surage continued with the 1973Constitution. The literacy requirement was removed while the age bar wasfurther lowered from 21 years to 18 years. Thus, Section 1, Article VI of the 1973Constitution reads:Section 1. Surage shall be exercised by citizens of the Philippines nototherwise disqualied by law, who are eighteen years of age or over, andwho shall have resided in the Philippines for at least one year and in theplace wherein they propose to vote for at least six months preceding theelection. No literacy, property or other substantive requirement shall beimposed on the exercise of surage. The National Assembly shall providea system for the purpose of securing the secrecy and sanctity of thevote. (italics ours)

The rationale for these changes was expressed in the Explanatory Note ofResolution No. 03 of the Committee on Surage and Electoral Reforms, viz:In keeping with the trend for the broadening of the electoral base alreadybegun with the lowering of the voting age to 18 and in keeping with thecommittee's desire to continue the alienation and exclusion of millions ofcitizens from the political system and from participation in the political lifein the country, the requirement of literacy for voting has been eliminated.It is noted that there are very few countries left in the world whereliteracy remains a condition for voting. There is no Southeast Asiancountry that imposes this requirement. The United States Supreme Courtonly a few months ago declared unconstitutional any state law that wouldcontinue to impose this requirement for voting.Although there were more resolutions submitted proposing the increaseof educational requirements for voting than those advocating theelimination of the literacy requirement, the committee felt that favoringthe elimination of the requirement would be more in keeping with itsobjective and that of the Constitutional Convention encouraging popularparticipation and equalizing the privileges and rights of the people. . .According to the Bureau of Census and Statistics, the projection for thepopulation of the Philippines over 18 years old for 1970 is 17,659,000. Ofthis, 12,384,000 are considered literates. However, the same Bureauadmitted that there is no real scientic literacy test in counting literates.All that is done is to ask each member of the population the questionwhether he is able to read and write and to take his answer at its facevalue.

These circumstances plus the well-known practice in all elections in which

political leaders spend their time in the barrios showing the prospectiveCD Technologies Asia, Inc. 2016

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voters to write the name of the candidates instead of explaining the

political issues to them, strengthened the conviction of the committeethat present literacy requirement is more of a joke, and worse, adeterrent to intelligent discussions of the issues. Finally, the committeetook note of the convincing argument that the requirement to read andwrite was written into our constitution at a time when the only medium ofinformation was the printed word and even the public meetings were notas large and successful because of the absence of amplifying equipment.It is a fact that today the vast majority of the population learn aboutnational matters much more from the audio-visual media, namely, radioand television, and public meetings have become much more eectivesince the advent of amplifying equipment.

In addition, the 1973 Constitution provided that no property or other substantive

requirement shall be imposed on the exercise of surage.The 1987 Constitution further liberalized the right of surage. For the rst time,it required Congress to provide a system for absentee voting by qualied Filipinosabroad and to design a procedure for the disabled and the illiterates to votewithout assistance from other persons. Be that as it may, four qualicationsexisting since the 1935 Constitution were retained: (1) Filipino citizenship; (2)age; (3) one year residence in the Philippines; and (4) six months residence inthe place where the voter proposes to vote. The wisdom of these fourqualications has not been questioned at any given time in the history of oursurage. It is easy to see the reason. Surage is a political right appertaining tocitizenship. Each individual qualied to vote is a particle of popular sovereignty,hence, the right of surage cannot be extended to non-citizens. As an attribute ofcitizenship, surage is reserved exclusively to Filipinos whose allegiance to thecountry is undivided. 35It is also conceded that the right of surage can be exercised only by persons of acertain age. Nobody could doubt the reason for preventing minors from takingpart in the political exercise. Voting is an act of choice and involves prescience. Itrequires not only a familiarity of political realities but also the maturity to makereasoned choices out of these realities. 36But citizenship and age requirements are not enough. For the vote to be moremeaningful as an expression of sovereignty, the voter must possess more than apassing acquaintance with the problems and prospects of the country. Thus,residence is imposed as a qualication "to exclude a stranger and a newcomer,unacquainted with the conditions and needs of the community and not identiedwith the latter." 37 The residence requirement is also necessary for administrativepurposes such as the preparation of accurate list of voters. 38I now come to the case at bar. The rst issue is whether Section 5(d) of Rep. ActNo. 9189 extending the right of surage to Filipinos who are "immigrants" or"permanent residents" of foreign countries is unconstitutional. To resolve thisissue, the following need to be addressed: (1) whether Section 2, Article V of theConstitution dispenses with the residence requirements prescribed in Section 1thereof; (2) whether an "immigrant" or a "permanent resident" satises theresidence requirements; (3) whether the execution of an adavit is sucientproof of non-abandonment of residence in the Philippines; and (4) whether thesystem provided in Section 5(d) of Rep. Act No. 9189 will dilute the right ofCD Technologies Asia, Inc. 2016

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surage of other Filipino voters who possess the full residence qualicationsunder Section 1, Article VI of the Constitution.(1) Whether Section 2 of Article V dispenses with the residencerequirements prescribed in Section 1 of the same Article.Section 1, Article V of the 1987 Constitution prescribes two residencequalications: (a) one year residence in the Philippines; and (2) six monthsresidence in the locality where the voter proposes to vote.In its ordinary conception, residence connotes the actual relationship of anindividual to a specic place. To be a resident, physical presence of a person in agiven area, community or country is required. 39 Even before the adoption of the1935 Constitution, jurisprudence has equated the rst residence requirement(one year residence in the Philippines) with domicile or legal residence. 40Domicile in turn has been dened as an individual's permanent home or "theplace to which, whenever absent for business or for pleasure, one intends toreturn, and depends on facts and circumstances in the sense that they discloseintent." 41 The domicile of a person is determined by the concurrence of thefollowing elements: (1) the fact of residing or physical presence in a xed place;and (2) animus manendi, or the intention of returning there permanently. 42 Themere absence of an individual from his permanent residence without theintention to abandon it does not result in a loss or change of domicile. 43The second residence requirement (six months residence in the place the voterproposes to vote) refers to either the voter's domicile or to his temporaryresidence. 44 A voter who is domiciled in a particular locality but has resided forsix months in another locality may register and vote in either locality, but not inboth. To be sure, a person fullling the rst residence requirement also fullls thesecond so long as the voter registers in his established domicile. The secondresidence requirement is relevant for two purposes: (1) the determination of theplace where the voter will register, and (2) the determination of the place wherethe voter will vote. It ought to be noted that as a general rule, a person shouldregister and vote in the place where he has established his domicile or the placewhere he has resided for six months.The intent of the members of the Constitutional Commission to apply theresidence requirements to absentee voters is evident from its deliberations.They precisely used the phrase "QUALIFIED FILIPINOS ABROAD" to stress thatthe absentee voter must have all the qualications in Section 1, Article VI of theConstitution, viz:MR. SUAREZ. May I just be recognized for a clarication. There are certainqualications for the exercise of the right of surage like having resided inthe Philippines for at least one year and in the place where they proposeto vote for at least six months preceding the elections. What is the eectof these mandatory requirements on the matter of the exercise of theright of surage by the absentee voters like Filipinos abroad?THE PRESIDENT. Would Commissioner Monsod care to answer?MR. MONSOD. I believe the answer was already given by CommissionerBernas, that the domicile requirements as well as the qualications anddisqualications would be the same.CD Technologies Asia, Inc. 2016

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THE PRESIDENT. Are we leaving it to the legislature to devise the system?

FR. BERNAS. I think there is a very legitimate problem raised there.THE PRESIDENT. Yes.MR. BENGZON. I believe Commissioner Suarez is claried.FR. BERNAS. But I think it should be further claried with regard to theresidence requirement or the place where they vote in practice; theunderstanding is that it is exible. For instance, one might be a resident ofNaga or domiciled therein, but he satises the requirement of residence inManila, so he is able to vote in Manila.MR. TINGSON. Madam President, may I suggest to the Committee tochange the word "Filipinos" to QUALIFIED FILIPINO VOTERS. Instead of"VOTING BY FILIPINOS ABROAD," it should be QUALIFIED FILIPINOVOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD,would that not satisfy the requirement?THE PRESIDENT. What does Commissioner Monsod say?MR. MONSOD. Madam President, I think I would accept the phrase"QUALIFIED FILIPINOS ABROAD" because "QUALIFIED" would assumethat he has the qualications and none of the disqualications to vote.MR. TINGSON. That is right. So does the Committee accept?FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?THE PRESIDENT. Does the Committee accept the amendment?MR. REGALADO. Madam President.THE PRESIDENT. Commissioner Regalado is recognized.MR. REGALADO. When Commissioner Bengzon asked me to read myproposed amendment, I specically stated that the National Assemblyshall prescribe a system which will enable qualied citizens, temporarilyabsent from the Philippines, to vote. According to Commissioner Monsod,the use of the phrase "absentee voting" already took into account as itsmeaning. That is referring to qualied Filipino citizens temporarily abroad.MR. MONSOD. Yes, we accepted that. I would like to say that with respectto registration we will leave it up to the legislative assembly, for example,to require where the registration is. If it is, say, members of thediplomatic corps who may be continuously abroad for a long time,perhaps, there can be a system of registration in the embassies.However, we do not like to preempt the legislative assembly.THE PRESIDENT. Just to clarify, Commissioner Monsod's amendment isonly to provide a system.MR. MONSOD. Yes.THE PRESIDENT. The Commissioner is not stating here that he wants newqualications for these absentee voters.MR. MONSOD. That is right. They must have the qualications and noneCD Technologies Asia, Inc. 2016

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of the disqualications.THE PRESIDENT. It is just to devise a system by which they can vote.MR. MONSOD. That is right, Madam President.

45

In the course of the deliberations, Fr. Bernas perceived a problem that may arisefrom the meaning of the second residence requirement on the place ofregistration and voting. As noted, a qualied voter normally registers and votesin the place where he is domiciled or has resided for six months. Fr. Bernas fearedthat the second residence requirement may pose a constitutional obstacle toabsentee voting "unless the vote of the person who is absent is a vote which willbe considered as cast in the place of his domicile," viz:

MR. OPLE. With respect to Section 1, it is not clear whether the right ofsurage, which here has a residential restriction, is not denied to citizenstemporarily residing or working abroad. Based on the statistics of thegovernment agencies, there ought to be about two million such Filipinosat this time. Commissioner Bernas had earlier pointed out that theseprovisions are really lifted from the two previous Constitutions of 1935and 1973, with the exception of the last paragraph. They could nottherefore have foreseen at that time the phenomenon now described asthe Filipino labor force explosion overseas.According to government data, there are now about 600,000 contractworkers and employees, and although the major portions of theseexpatriate communities of workers are found in the Middle East, they arescattered in 177 countries in the world.In previous hearings of the Committee on Constitutional Commissionsand Agencies, the Chairman of the Commission on Elections, RamonFelipe, said that there was no insuperable obstacle to making eective theright of surage for Filipinos overseas. Those who have adhered to theirFilipino citizenship notwithstanding strong temptations are exposed toembrace a more convenient foreign citizenship. And those who on theirown or under pressure of economic necessity here, nd that they havedetached themselves from their families to work in other countries withdenite tenures of employment. Many of them are on contractemployment for one, two, or three years. They have no intention ofchanging their residence on a permanent basis, but are technicallydisqualied from exercising the right of surage in their countries ofdestination by residential requirement in Section 1 . . .xxx xxx xxxI, therefore, ask the Committee whether at the proper time, they mightentertain an amendment that will make this exercise of the right to voteabroad for Filipino citizens an eective, rather than merely a nominal rightunder this proposed Constitution.FR. BERNAS. Certainly, the Committee will consider that. But more thanjust saying that, I would like to make a comment on the meaning of"residence" in the Constitution because I think it is a concept that hasbeen discussed in various decisions of the Supreme Court, particularly inCD Technologies Asia, Inc. 2016

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the case of Faypon vs. Quirino, a 1954 case which dealt precisely with themeaning of "residence" in the Election Law. . .xxx xxx xxxIn other words, "residence" in this provision refers to two residencequalications: "residence" in the Philippines and "residence" in the placewhere he will vote. As far as the residence in the Philippines is concerned,the word "residence" means domicile, but as far as residence where hewill actually cast his ballot is concerned, the meaning seems to bedierent. He could have a domicile somewhere else and yet he is allowedto vote there. So that there may be serious constitutional obstacles toabsentee voting, unless the vote of the person who is absent is a votewhich will be considered as cast in the place of his domicile. 46 (italicssupplied)

Following the observation of Father Bernas and to obviate the constitutional

problem, the members of the Constitutional Commission then discussed thesystem of registration of qualied Filipinos abroad who will be allowed to vote. Itwas agreed that their registration abroad would be considered as registration in aparticular locality in the Philippines where he is domiciled, and the vote castabroad would be considered cast in that particular locality, to wit:MR. REGALADO. I just want to make a note on the statement ofCommissioner Suarez that this envisions Filipinos residing abroad. Theunderstanding in the amendment is that the Filipino is temporarily abroad.He may or may not be actually residing abroad; he may just be there on abusiness trip. It just so happens that the day before the elections he hasto y to the United States, so that he could not cast his vote. He istemporarily abroad but not residing there. He stays in a hotel for twodays and comes back. This is not limited only to Filipinos temporarilyresiding abroad. But as long as he is temporarily abroad on the date ofthe elections, then he can fall within the prescription of Congress in thatsituation.MR. SUAREZ. I thank the Commissioner for his further clarication.Precisely, we need this clarication on record.MR. MONSOD. Madam President, to clarify what we mean by "temporarilyabroad," it need not be on very short trips. One can be abroad on atreaty traders visa. Therefore, when we talk about registration, it ispossible that his residence is in Angeles and he would be able to vote forthe candidates in Angeles, but Congress or the Assembly may provide theprocedure for registration, like listing one's name, in a registry list in theembassy abroad. That is still possible under this system.FR. BERNAS. Madam President, just one clarication if CommissionerMonsod agrees with this.Suppose we have a situation of a child of a diplomatic ocer who reachesthe voting age while living abroad and he has never registered here.Where will he register? Will he be a registered voter of a certain locality inthe Philippines?MR. MONSOD. Yes, it is possible that the system will enable that child tocomply with the registration requirements in an embassy in the UnitedCD Technologies Asia, Inc. 2016

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States and his name is then entered in the ocial registration book inAngeles City, for instance.FR. BERNAS. In other words, he is not a registered voter of Los Angeles,but a registered voter of a locality here.MR. MONSOD. That is right. He does not have to come home to thePhilippines to comply with the registration procedure here.FR. BERNAS. So, he does not have to come home.

47

(italics ours)

It is crystal clear from the foregoing deliberations, that the majority erred inruling that Section 2 of Article V of the Constitution dispensed with the residencerequirements provided under Section 1 of the same Article.(2) Whether an "immigrant" or a "permanent resident" of a foreigncountry has lost his domicile in the Philippines.The next question is whether an "immigrant" or a "permanent resident" of aforeign country has abandoned his domicile in the Philippines. I respectfullysubmit that he has.There are three classes of domicile, namely: domicile of origin, domicile ofchoice, and domicile by operation of law. At any given point, a person can onlyhave one domicile.Domicile of origin is acquired by every person at birth and continues untilreplaced by the acquisition of another domicile. More specically, it is thedomicile of the child's parents or of the persons upon whom the child is legallydependent at birth. Although also referred to as domicile of birth, domicile oforigin is actually the domicile of one's parents at the time of birth and may notnecessarily be the actual place of one's birth. 48 Domicile of choice is a domicilechosen by a person to replace his or her former domicile. An adult may changedomicile at will. The choice involves an exercise of free will and presumes legalcapacity to make a choice. While intention is a principal feature on domicile ofchoice, a mere intention without the fact of actual presence in the locality cannotbring about the acquisition of a new domicile. Domicile of choice generallyconsists of a bodily presence in a particular locality and a concurrent intent toremain there permanently or at least indenitely. 49 Domicile by operation of lawis a domicile that the law attributes to a person independent of a person'sresidence or intention. It applies to infants, incompetents, and other personsunder disabilities that prevent them from acquiring a domicile of choice. 50I n Romualdez-Marcos v. COMELEC, 51 we ruled that domicile of origin is noteasily lost. To successfully eect a change of domicile, one must demonstrate anactual removal or an actual change of domicile; a bona de intention ofabandoning the former place of residence and establishing a new one; and actswhich correspond with purpose. 52 This change of domicile is eected by aFilipino who becomes an "immigrant" or a "permanent resident" of a foreigncountry. Thus, we held in Caasi v. Court of Appeals, 53 viz:Miguel's application for immigrant status and permanent residence in theU.S. and his possession of a green card attesting to such status areconclusive proof that he is a permanent resident of the U.S. despite hisoccasional visits to the Philippines. The waiver of such immigrant statusCD Technologies Asia, Inc. 2016

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should be as indubitable as his application for it. Absent clear evidence

that he made an irrevocable waiver of that status or that he surrenderedhis green card to the appropriate U.S. authorities before he ran for mayor. . . 54

The doctrine in Caasi is by no means new. Our election laws have continuouslyregarded "immigrants" or "permanent residents" of a foreign country to have losttheir domiciles in the Philippines and hence are not qualied to run for publico ce. 55 There is no reason not to apply the Caasi ruling in disputes involvingthe qualication of voters. In essence, both cases concern fulllment of theresidence requirements.Section 5(d) of Rep. Act No. 9189 itself reinforces the applicability of the Caasidoctrine. As observed by the majority, Rep. Act No. 9189 disqualies animmigrant or a permanent resident who is recognized as such in another country"because immigration or permanent residence in another country impliesrenunciation of one's residence in his country of origin." 56We now slide to the legal signicance of the adavit to be executed by"immigrants" or "permanent residents" to remove them from the class ofdisqualied voters.EaISDC

3. Whether the execution by an immigrant or a permanent resident

of the adavit under Section 5(d) of Rep. Act No. 9189 issucient proof of non-abandonment of residence in thePhilippines.

Again, with due respect, I submit that the majority ruling on the nature of theadavit to be executed by an "immigrant" or a "permanent resident" isinconsistent. On one hand, it theorizes that the act "serves as an explicitexpression that he had not in fact abandoned his domicile of origin." 57 Thisconcedes that while an "immigrant" or a "permanent resident" has acquired anew domicile in a foreign country by virtue of his status as such, Rep. Act No.9189 would consider him not to have abandoned his domicile in the Philippines.On the other hand, the majority also theorizes that the adavit constitutes an"express waiver of his status as an immigrant or permanent resident," and uponfulllment of the requirements of registration, "he may still be considered as a'qualied citizen of the Philippines abroad' for purposes of exercising his right ofsu rage." 58 This presupposes that the "immigrant" or "permanent resident"abandoned his domicile in the Philippines, but seeks to reacquire this domicile bythe execution of the adavit.The rst theory is untenable. Its inevitable result would be the establishment oftwo domiciles, i.e., domicile in the Philippines and domicile in a foreign countrywhere he is considered an "immigrant" or a "permanent resident." This rulingwill contravene the principle in private international law that a person can bedomiciled only in one place at a given time. 59The second theory is equally untenable. A person who has abandoned hisdomicile of origin by establishing a domicile of choice cannot just revert back tohis domicile of origin. 60 He must satisfy the same requisites for acquiring a newdomicile, i.e., an actual removal or an actual change of domicile; a bona deCD Technologies Asia, Inc. 2016

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intention of abandoning the former place of residence and establishing a new

one; and acts which correspond with the purpose. An existing domicile cannot belost by abandonment alone, even if there is an intent to acquire a new one; theexisting domicile continues until a new one is in fact gained. To abandondomicile, a person must choose a new domicile, actually reside in the placechosen, and intend that it be the principal and permanent residence. That is,there can be no change of domicile without the concurrence of act and intent. 61The doctrine established in England that the domicile of origin is revived uponthe abandonment of a domicile of choice has long been rejected in the UnitedStates. 62 Even in England, "the mobility of modern society has fostered bothcriticism of the rule and recommendation for its change." 63 Thus, the prevailingview at present is that if a domicile of choice is abandoned without acquiring anew domicile of choice, "the domicil[e] of origin is not thereby revived, but thelast domicil[e] of choice continues to be the domicil[e]." 64In his Separate Opinion, our esteemed colleague, Mr. Justice Azcuna, opines thatthe execution of the adavit is the operative act that revives the domicile oforigin, and "the requirement of resuming actual physical presence within three(3) years is only a test of such intention." He further opines that "if the aantdoes not resume the residence physically within said period, then the intentexpressed in the adavit is defective and the law will deem it inoperative."With due respect, I submit that the adavit merely proves the intent to returnbut not the other requisites for reacquiring the domicile of origin. Intent, whichis not coupled with actual physical transfer, is not sucient either to abandonthe former domicile or to establish a new domicile. 65 Thus, the view thatdomicile could be established as soon as the old is abandoned even though theperson has not yet arrived at the new domicile, has not been accepted. In hislatest work on the subject, Scoles, an acknowledged expert in Conict of Lawsstated as follows:The element of physical presence is essential to conrm the requisiteattitude of mind contemplated by the concept of domicile. As aconsequence, a person who is to acquire a domicile of choice at a placemust actually be present at that place during the time in which theintention to make it his home exists. For most people, intention isconrmed by the physical presence of considerable duration lookingtoward an indenite period of time. However, in light of the function thatdomicile serves, i.e., to identify a settled relationship with a place for aparticular legal purpose, it is sometimes necessary to make adetermination when the physical presence has been very brief.Consequently, no particular length of time is necessary in order to satisfythe requirement of physical presence if that stay at a place veries theintention to make it a home.xxx xxx xxxIn the case of the individual who has clearly manifested an intention tochange a new home and center of social activities, the questionsometimes arises why that person's domicile should not change as soonas the old is abandoned even though the individual has not yet arrived atthe new. Although this has sometimes been suggested as a possibility, itis contrary to the clear weight of authority, probably because physicalCD Technologies Asia, Inc. 2016

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presence is ordinarily the principal conrming evidence of the intention of

the person. 66 (italics ours)

Beale, another acknowledged expert on the subject, shares the same view, viz:One or two authorities under special circumstances have held that adomicil[e] might be acquired in a certain place while the person is on hisway toward the place with an intent to live there and during his journeytoward that place, although he had not yet actually reached that place. Intwo taxation cases in Massachusetts, where upon the taxing day theperson in question was actually on his journey from a former residence inthe state to an intended second residence, whether in the same state orin another state, he was held to be taxable in the second residence in theground that under those peculiar circumstances his domicil[e] would shiftat the moment of abandoning the rst residence. These, however, weredisapproved and overruled. In one other case, a similar intimation hasbeen made. In Matter of Grant, it appeared that a decedent had left aUnited States reservation in the State of New York with intention to go tothe District of Columbia, and there establish his residence, but he haddied en route. Fowler, Surrogate, intimated that he was already domiciledin the District of Columbia. It is not too much to say, however, that thereis absolutely no good authority for the opinion thus expressed, and that islegally impossible for a man to acquire a domicil[e] before he is present atthe place where the domicil[e] is established. 67 (italics ours)

Beale also states that with the rejection of the English "automatic reversion"doctrine, physical presence is required before the person can reacquire hisdomicile of origin, viz:The doctrine in England is that the domicil[e] of origin revives upon theabandonment of a domicil[e] of choice. . . Inspite of a few English casesto the contrary, this has become thoroughly established as the doctrineof the English courts, the court being especially emphatic in cases wherea person has left his domicil[e] of choice without intent to return and hasstarted to return to his domicil[e] of origin. Here, evidence must ofcourse be introduced to show a denitive abandonment of domicil[e] ofchoice by actually leaving the country without intent to return. TheEnglish doctrine has been approved in this country in several cases, inmost of which the approval was a mere dictum, but in the United States,generally, the opposite view is held, and upon the abandonment of adomicil[e] of choice there is no change of domicil[e] until a new domicil[e]is obtained. . .On the other hand, a few American cases follow the English decision in sofar as to declare that a domicil[e] of origin revives when a person havingabandoned a domicil[e] of choice is on his way to make a home at hisdomicil[e] of origin, but the better opinion in this country does not allowthe reacquisition of the domicil[e] of origin until the fact of presence atthe place of domicil[e] of origin exists, as well as the intent to returnthere. 68 (italics ours)

To stress, the burden of establishing a change in domicile is upon the party whoasserts it. 69 A person's declarations as to what he considers his home, residence,or domicile are generally admissible "as evidence of his attitude of mind." 70However, whatever the context, "their accuracy is suspect because of their selfCD Technologies Asia, Inc. 2016

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serving nature, particularly when they are made to achieve some legalobjective." 71In the case at bar, the burden rests on an "immigrant" or a "permanent resident"to prove that he has abandoned his domicile in the foreign country andreestablished his domicile in the Philippines. A self-serving adavit will notsuce, especially when what is at stake is a very important privilege as the rightof surage. I respectfully submit that what makes the intent expressed in theadavit eective and operative is the fulllment of the promise to return to thePhilippines. Physical presence is not a mere test of intent but the "principalconrming evidence of the intention of the person." 72 Until such promise isfullled, he continues to be a domiciliary of another country. Until then, he doesnot possess the necessary requisites and therefore, cannot be considered aqualied voter.(4) Whether counting the votes of immigrants or permanentresidents who fail to return to the Philippines will dilute thevalid votes of our fully qualied electors.The only consequence imposed by Rep. Act No. 9189 to an "immigrant" or a"permanent resident" who does not fulll his promise to return to the Philippinesis the removal of his name from the National Registry of Absentee Voters and hispermanent disqualication to vote in absentia. But his vote would be countedand accorded the same weight as that cast by bona de qualied Filipino voters.I respectfully submit that this scheme diminishes the value of the right ofsurage as it dilutes the right of qualied voters to the proportionate value oftheir votes. The one person, one vote principle is sacrosanct in a republican formof government. The challenged provision which allows the value of the validvotes of qualied voters to be diminished by the invalid votes of disqualiedvoters violates the sovereignty of our people. The validation by the majority ofthis unconstitutional provision may result in the anomaly where the highestpublic ocials of our land will owe their election to "immigrants" or "permanentresidents" who failed to fulll their promise to return to our country or whorepudiated their domicile here.

The majority downplays the eect of the challenged provision on those who arealready qualied prior to the enactment of Rep. Act No. 9189. It is opined thatthe removal of an "immigrant" or a "permanent resident" from the list of theNational Registry of Absentee Voters and his permanent disqualication "wouldsuce to serve as deterrence to non-compliance with his/her undertaking underthe adavit." The majority misses the point. Without Section 5(d) of Rep. ActNo. 9189, an "immigrant" or a "permanent resident" has no right to vote. Thus,even assuming that he becomes qualied after executing the adavit, he doesnot stand to lose anything when he is subsequently disqualied for his failure tocomply with his undertaking under the adavit. He will just return to hisoriginal status.B.Is Section 18.5 of Rep. Act No. 9189 in relation to Section 4 of the same Act incontravention of Section 4, Article VII of the Constitution?CD Technologies Asia, Inc. 2016

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Petitioner contends that Section 18.5 in relation to Section 4 of Rep. Act No. 9189violates Section 4, Article VII of the 1987 Constitution giving Congress the powerto canvass the votes and proclaim the winning candidates for President and VicePresident, viz:xxx xxx xxxThe returns of every election for President and Vice-President, dulycertied by the board of canvassers of each province or city, shall betransmitted to the Congress, directed to the President of the Senate.Upon receipt of the certicates of canvass, the President of the Senateshall, not later than thirty days after the day of the election, open allcerticates in the presence of the Senate and the House ofRepresentatives in joint public session, and the Congress, upondetermination of the authenticity and due execution thereof in themanner provided by law, canvass the votes.The person having the highest number of votes shall be proclaimedelected, but in case two or more shall have an equal and highest numberof votes, one of them shall forthwith be chosen by the vote of a majorityof all the Members of both Congress, voting separately.The Congress shall promulgate its rules for the canvassing of thecerticates.xxx xxx xxx

Section 4 of Rep. Act No. 9189 allows all qualied Filipinos overseas to vote forPresident, Vice-President, Senators and party-list representatives while Section18.5 thereof empowers the COMELEC to order the proclamation of winningcandidates, viz:SEC. 18. On-Site Counting and Canvassing. xxx xxx xxx18.5 The canvass of votes shall not cause the delay of the proclamationof a winning candidate if the outcome of the election will not be aectedby the results thereof. Notwithstanding the foregoing, the Commission isempowered to order the proclamation of winning candidates despite thefact the scheduled election has not taken place in a particular country orcountries, if the holding of elections therein has been rendered impossibleby events, factors and circumstances peculiar to such country orcountries, in which events, factors and circumstances are beyond thecontrol or inuence of the Commission.

On its face, Section 18.5 of Rep. Act No. 9189 appears to be repugnant to Section4, Article VII of the 1987 Constitution. It gives the impression that Congressabdicated to COMELEC its constitutional duty to canvass and proclaim thewinning candidates for President and Vice-President. I agree with the majoritythat the impugned provision should be given a reasonable interpretation thatwould save it from a constitutional inrmity. To be sure, Congress could have notallowed the COMELEC to exercise a power exclusively bestowed upon it by theConstitution. Thus, Section 18.5 of Rep. Act No. 9189 empowering the COMELECto proclaim the winning candidates should be construed as limited to thepositions of Senators and party-list representatives. In like manner, I agree with

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the majority that Section 18.4 of Rep. Act No. 9189 which provides:18.4. . . . Immediately upon the completion of the canvass, the chairmanof the Special Board of Canvassers shall transmit via facsimile, electronicmail, or any other means of transmission equally safe and reliable theCerticates of Canvass and the Statements of Votes to the Commission, .. . (italics supplied)

should be construed in harmony with Section 4, Article VII of the 1987

Constitution. Hence, with respect to the position of the President and the VicePresident, the Certicates of Canvass and the Statements of Votes must besubmitted to Congress and directed to the Senate President.C.Does Congress, through the Joint Congressional Oversight Committee created inSection 25 of Rep. Act No. 9189, have the power to review, revise, amend andapprove the Implementing Rules and Regulations that the Commission onElections shall promulgate without violating the independence of the COMELECunder Section 1, Article IX-A of the Constitution?Both the Commission on Elections (COMELEC) and the Oce of the SolicitorGeneral (OSG) agree with the petitioner that Sections 19 and 25 of Rep. Act No.9189 are unconstitutional on the ground that they violate the independence ofthe COMELEC. 73 The impugned provisions require the public respondentCOMELEC to submit its Implementing Rules and Regulations to the JointCongressional Oversight Committee for review, revision, amendment, orapproval, viz:Sec. 19. Authority of the Commission to Promulgate Rules. TheCommission shall issue the necessary rules and regulations to eectivelyimplement the provisions of this Act within sixty (60) days from eectivityof this Act. The Implementing Rules and Regulations shall be submitted tothe Joint Oversight Committee created by virtue of this Act for priorapproval.In the formulation of the rules and regulations, the Commission shallcoordinate with the Department of Foreign Aairs, Department of Laborand Employment, Philippine Overseas Employment Administration,Overseas Workers' Welfare Administration and the Commission on FilipinoOverseas. Non-government organizations and accredited Filipinoorganizations or associations abroad shall be consulted.xxx xxx xxxSec.25. Joint Congressional Oversight Committee. A jointCongressional Oversight Committee is hereby created, composed of theChairman of the Senate Committee on Constitutional Amendments,Revision of Codes and Laws, and seven (7) other Senators designated bythe Senate President, and the Chairman of the House Committee onSurage and Electoral Reforms, and seven (7) other members of theHouse of Representatives designated by the Speaker of the House ofRepresentatives: Provided, That, of the seven (7) members to bedesignated by each House of Congress, four (4) should come from themajority and the remaining three (3) from the minority.CD Technologies Asia, Inc. 2016

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The Joint Congressional Oversight Committee shall have the power to

monitor and evaluate the implementation of this Act. It shall review,revise, amend and approve the Implementing Rules and Regulationspromulgated by the Commission. (italics supplied)

Public respondents aver that as an independent constitutional body, the

COMELEC is not under the control of the executive or the legislative 74 in theperformance of its constitutional function to "enforce and administer all laws andregulations relative to the conduct of an election." 75 Public respondent COMELECasserts that its right to formulate rules and regulations ows from its power toenforce and administer election laws and regulations. 76 This power is exclusiveand its exercise is not subject to the review, revision, or approval of Congress. 77The Solicitor General shares the same view that the role of the legislature endswith the nished task of legislation. 78 He opines that nothing in Article VI of the1987 Constitution suggests that Congress is empowered to enforce andadminister election laws concurrent with the COMELEC. 79Along the same lines, public respondent COMELEC assails Section 17.1 of Rep. ActNo. 9189 subjecting the implementation of voting by mail to prior review andapproval of the Joint Oversight Committee. It maintains that the development ofa system for voting by mail involves the "administration of election laws" andfalls squarely within its exclusive functions. 80 Section 17.1 of Rep. Act No. 9189reads:Sec. 17. Voting by mail. 17.1. For the May, 2004 elections, the Commission shall authorize votingby mail in not more than three (3) countries, subject to the approval ofthe Congressional Oversight Committee. Voting by mail may be allowed incountries that satisfy the following conditions:(a) Where the mailing system is fairly well-developed and secure toprevent occasion of fraud;(b) Where there exists a technically established identicationsystem that would preclude multiple or proxy voting; and(c) Where the system of reception and custody of mailed ballots inthe embassies, consulates and other foreign serviceestablishments concerned are adequate and well-secured.Thereafter, voting by mail in any country shall be allowed only uponreview and approval of the Joint Oversight Committee. (italics supplied)

The majority sustains the petitioner as it holds that "[b]y vesting itself with thepowers to approve, review, amend and revise the IRR for The Overseas VotingAct of 2003, Congress went beyond the scope of its constitutional authority.Congress trampled upon the constitutional mandate of independence of theCOMELEC."I agree with the majority but wish to add my humble thoughts on this allimportant constitutional issue the extent of the exercise by Congress of itsoversight powers in the implementation of Rep. Act No. 9189. The resolution ofthe issue entails a two-tiered discussion of the following: (1) whether Congresshas oversight functions over constitutional bodies like the COMELEC; and (2)CD Technologies Asia, Inc. 2016

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assuming that it has, whether Congress exceeded the permissible exercise of itsoversight functions.

Before proceeding, we must focus on the exact place of the power of

congressional oversight in our constitutional canvass. This will involve anexposition of two principles basic to our constitutional democracy: separation ofpowers and checks and balances.Separation of powers and checks and balancesThe principle of separation of powers prevents the concentration of legislative,executive, and judicial powers to a single branch of government by deftlyallocating their exercise to the three branches of government. This principledates back from the time of Aristotle 81 but the "modern" concept owes its originin the seventeenth and eighteenth century writings of political philosophersincluding Locke and Montesquieu. Their writings were mainly reactions to theruinous struggle for power by the monarchs and the parliaments in WesternEurope. 82In his Second Treatise of Civil Government , 83 John Locke advocated the properdivision of the legislative, executive and federative powers of thecommonwealth. He dened legislative power as "that which has a right to directhow the force of the commonwealth shall be employed for preserving thecommunity and the members of it." 84 He viewed executive power as involving"the execution of the municipal laws of the society within its self, [and] upon allthat are parts of it" 85 and federative power as concerned with "the managementof the security and interest of the public without" including "the power of warand peace, leagues and alliances, and all the transactions, with all persons andcommunities without the commonwealth." 86Locke expostulated that executive powers should not be placed in one person orgroup of persons exercising legislative power because "it may be too great atemptation to human frailty, apt to grasp at power, for the same persons, whohave the power to execute them, whereby they may exempt themselves fromobedience to the laws they make, and suit the law, both in its making, andexecution, to their own private advantage, and thereby come to have a distinctinterest from the rest of the community, contrary to the end of society andgovernment." 87 But while the executive and the federative are two distinctpowers, Locke conceded that they are intricately related and thus may beexercised by the same persons. 88Locke mothered the modern idea of division of power but it was Montesquieuwho rened the concept. In his famed treatise, The Spirit of the Laws, 89Montesquieu authoritatively analyzed the nature of executive, legislative andjudicial powers and with a formidable foresight counselled that any combinationof these powers would create a system with an inherent tendency towardstyrannical actions, thus:In every government there are three sorts of power: the legislative; theexecutive in respect to things dependent on the law of nations; and theexecutive in regard to matters that depend on the civil law. By virtue ofthe legislative power, the prince or magistrate enacts temporary orCD Technologies Asia, Inc. 2016

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perpetual laws, and amends or abrogates those that have been alreadyenacted. By the second, he makes peace or war, sends or receivesembassies, establishes the public security, and provides againstinvasions. By the third, he punishes criminals, or determines the disputesthat arise between individuals. The latter we shall call the judiciary power,and the other, simply the executive power of the state.The political liberty of the subject is a tranquility of mind arising from theopinion each person has of his safety. In order to have this liberty, it isrequisite the government be so constituted as one man need not beafraid of another.When the legislative and executive powers are united in the same person,or in the same body of magistrates, there can be no liberty; becauseapprehensions may arise, lest the same monarch or senate should enacttyrannical laws, to execute them in a tyrannical manner.Again, there is no liberty, if the judiciary power be not separated from thelegislative and the executive. Were it joined with the legislative, the life andliberty of the subject would be exposed to arbitrary control; for the judgewould be then the legislator. Were it joined to the executive power, thejudge might behave with violence and oppression.There would be an end of everything, were the same man or the samebody, whether of the nobles or of the people, to exercise those threepowers, that of enacting laws, that of executing the public resolutions,and that of trying the causes of individuals." 90

At the time of the American Revolution, the more inuential political leaders inthe new states subscribed to Montesquieu's concept of separation of powers. 91Some constitutions of the early state governments even referred to the principle.But the concept espoused at that particular time was a lot dierent. As thenunderstood, separation of powers requires a watertight compartmentalization ofthe executive, judicial, and legislative functions and permits no sharing ofgovernment powers between and among the three branches of government. TheMassachusetts Constitution of 1780, for instance, provides:In the government of this commonwealth, the legislative department shallnever exercise the executive and judicial powers, or either of them; theexecutive shall never exercise the legislative and judicial powers, or eitherof them; the judicial shall never exercise the legislative and executivepowers, or either of them: to the end that it may be a government oflaws and not of men. 92

The 1787 U.S. Constitution did not contain a similar provision like that found inthe Massachusetts Constitution or any principle proclaiming the adherence of theFramers to the principle of separation of powers. But legal scholars are of theview that the Framers essentially followed Montesquieu's recommendation forthe division of powers, noting that the U.S. Constitution vests "all legislativepowers" in the Congress of the United States, 93 the "executive power" in thePresident, 94 and the "judicial power" in one Supreme Court and in such inferiorcourts as Congress may provide. 95These legal scholars also note that the U.S. Constitution allows the "sharing" ofthe three great powers between and among the three branches. The President,CD Technologies Asia, Inc. 2016

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for instance, shares in the exercise of legislative power through his veto power,and the courts through their power to make rules of judicial procedure andespecially through their right to interpret laws and invalidate them asunconstitutional. Congress shares in the exercise of executive power through itsconrmation of appointments and assent to treaties, and in the judicial powerthrough its power to create inferior courts and regulate the number and pay ofjudges. 96 Thus, they postulate that the Framers established a governmentguided not by strict separation of powers but one of checks and balances toprevent the separate branches from "running wild" and to avert deadlocks andbreakdowns, viz:The Framers expected the branches to battle each other to acquire anddefend power. To prevent the supremacy of one branch over any other inthese battles, powers were mixed; each branch was granted importantpower over the same area of activity. The British and Conferenceexperience has led the Framers to avoid regarding controversy betweenthe branches as a conict between good and evil or right or wrong,requiring denitive, institutionally permanent resolution, Rather, theyviewed such conict as an expression of the aggressive and perversepart of human nature that demanded outlet but has to be kept fromnding lasting resolution so that liberty could be reserved. 97

Even then, some legal luminaries were of the view that the concept of checksand balances is diametrically opposed to the principle of separation of powers.James Madison, however, explained that Montesquieu's concept of separation ofpowers did not require a strict division of functions among the three branches ofgovernment. Madison defended the Constitution as having sucient division offunctions among the three branches of government to avoid the consolidation ofpower in any one branch and also stressed that a rigid segregation of the threebranches would undermine the purpose of the separation doctrine. 98 He notedthat unless the three branches "be so far connected and blended as to give toeach a constitutional control over the others, the degree of separation which themaxim requires as essential to a free government, can never in practice be dulymaintained." 99 Madison's view has since then been the accepted interpretationof the concept of separation of powers under the Constitution. Thus, inYoungstown Sheet & Tube Co. v. Sawyer, 100 the U.S. Supreme Court held that"[I]n designing the structure of our Government and dividing and allocating thesovereign power among the three co-equal branches, the Framers of theConstitution sought to provide a comprehensive system but the separate powerswere not intended to operate with absolute independence." In Buckley v. Valeo,101 the Court ruled that the Constitution by no means contemplates totalseparation of each of these essential branches of government and the framersviewed the principle of separation of powers as a vital check against tyranny. Itlikewise warned that the "hermetic sealing o of the three branches ofGovernment from one another would preclude the establishment of a Nationcapable of governing itself eectively." 102 Thus, in Nixon v. Administrator ofGeneral Services, 103 the Court rejected the "archaic view of separation of powersas requiring three airtight departments of government." In determining whetheran act disrupts the proper balance between the coordinate branches, the Courtsuggested that the proper inquiry should focus on the extent to which it preventsthe other branch from accomplishing its constitutionally assigned functions. 104CD Technologies Asia, Inc. 2016

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In this jurisdiction, our adherence to the principle of separation powers was

succinctly discussed by Justice Laurel in Angara v. Electoral Commission 105decided in 1936, less than a year after the eectivity of the 1935 Constitution.Justice Laurel emphasized that "[T]he separation of powers is a fundamentalprinciple in our system of government. It obtains not through express provisionbut by actual division in our Constitution." 106 Thus:

Each department of the government has exclusive cognizance of the

matters within its jurisdiction, and is supreme within its own sphere. But itdoes not follow from the fact that the three powers are to be keptseparate and distinct that the Constitution intended them to be absolutelyunrestrained and independent of each other. The Constitution hasprovided for an elaborate system of checks and balances to securecoordination in the workings of the various departments of thegovernment. For example, the Chief Executive under our Constitution isso far made a check on the legislative power that this assent is requiredin the enactment of laws. This, however, is subject to the further checkthat a bill may become a law notwithstanding the refusal of the Presidentto approve it, by a vote of two-thirds or three-fourths, as the case maybe, of the National Assembly. The President has also the right to convenethe Assembly in special session whenever he chooses. On the otherhand, the National Assembly operates as a check on the Executive in thesense that its consent though its Commission on Appointments isnecessary in the appointment of certain ocers; and the concurrence ofa majority of all its members is essential to the conclusion of treaties.Furthermore, in its power to determine what courts other than theSupreme Court shall be established, to dene their jurisdiction and toappropriate funds for their support, the National Assembly controls thejudicial department to a certain extent. The Assembly also exercises thejudicial power of trying impeachments. And the judiciary in turn, with theSupreme Court as the nal arbiter, eectively checks the otherdepartments in the exercise of its power to determine the law, and henceto declare executive and legislative acts void if violative of theConstitution. 107

I n Planas v. Gil, 108 Justice Laurel further discussed the intricate interplay of theprinciple of separation of powers and checks and balances, viz:The classical separation of governmental powers, whether viewed in thelight of political philosophy of Aristotle, Locke or Montesquieu, or to thepostulations of Mabini, Madison, or Jeerson, is a relative theory ofgovernment. There is more truism and actuality in interdependence thanin independence and separation of powers, for as observed by JusticeHolmes in a case of Philippine origin, we cannot lay down "withmathematical precision and divide the branches in watertightcompartments" not only because "the ordinances of the Constitution donot establish and divide elds of black and white" but also because "evenmore specic to them are found to terminate in a penumbra shadinggradually from one extreme to the other." 109

It is now beyond debate that the principle of separation of powers (1) allows the"blending" of some of the executive, legislative, or judicial powers in one body;CD Technologies Asia, Inc. 2016

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(2) does not prevent one branch of government from inquiring into the aairs ofthe other branches to maintain the balance of power; (3) but ensures that thereis no encroachment on matters within the exclusive jurisdiction of the otherbranches.For its part, this Court checks the exercise of power of the other branches ofgovernment through judicial review. It is the nal arbiter of disputes involvingthe proper allocation and exercise of the dierent powers under the Constitution.Thus:The Constitution is a denition of the powers of government. Who is todetermine the nature, scope and extent of such powers? TheConstitution itself has provided for the instrumentality of the judiciary asthe rational way. And when the judiciary mediates to allocate constitutionalboundaries, it does not assert any superiority over the otherdepartments; it does not in reality nullify or invalidate an act of thelegislature, but only asserts the solemn and sacred obligation assigned toit by the Constitution to determine conicting claims of authority underthe Constitution and to establish for the parties in an actual controversythe rights which that instrument secures and guarantees to them. This isin truth all that is involved in what is termed "judicial supremacy" whichproperly is the power of judicial review under the Constitution. 110

The power of judicial review is, however, limited to "actual cases andcontroversies to be exercised after full opportunity of argument by the parties,and limited further to the constitutional question raised or the very lis motapresented," for "any attempt at abstraction could only lead to dialectics andbarren legal questions and to sterile conclusions of wisdom, justice or expediencyof legislation." 111 Courts are also enjoined to accord the presumption ofconstitutionality to legislative enactments, "not only because the legislature ispresumed to abide by the Constitution but also because the judiciary in thedetermination of actual cases and controversies must reect the wisdom andjustice of the people as expressed through their representatives in the executiveand legislative departments of the government." 112The role of the judiciary in mapping the metes and bounds of powers of thedierent branches of government was redened in the 1987 Constitution whichexpanded the jurisdiction of this Court to include the determination of "graveabuse of discretion amounting to lack or excess of jurisdiction on the part of anybranch or instrumentality of the Government." 113 The expansion was madebecause of the dissatisfaction with the practice of this Court in frequentlyinvoking the "political question" 114 doctrine during the period of martial law tododge its duty. 115 Be that as it may, the expanded power "denitely does not doaway with the political question doctrine itself." 116Thus, in Marcos v. Manglapus, 117 the Court held:Under the Constitution, judicial power includes the duty to determinewhether or not there has been a grave abuse of discretion amounting tolack or excess of jurisdiction on the part of any branch or instrumentalityof the Government. [Art. VIII, Sec. 1.] Given this wording, we cannotagree with the Solicitor General that the issue constitutes a politicalquestion which is beyond the jurisdiction of the Court to decide.CD Technologies Asia, Inc. 2016

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The present Constitution limits resort to the political question doctrine andbroadens the scope of judicial inquiry into areas which the Court, underprevious constitutions, would have normally left to the politicaldepartments to decide. But nonetheless there remain issues beyond theCourt's jurisdiction the determination of which is exclusively for thePresident, for Congress or for the people themselves through a plebisciteor referendum. We cannot, for example, question the President'srecognition of a foreign government, no matter how premature orimprovident such action may appear. We cannot set aside a presidentialpardon though it may appear to us that the beneciary is totallyundeserving of the grant. Nor can we amend the Constitution under theguise of resolving a dispute brought before us because the power isreserved to the people. 118

Since then, the Court has used its expanded power to check acts of the House ofRepresentatives, 119 the President, 120 and even of independent bodies such asthe Electoral Tribunal, 121 the Commission on Elections 122 and the Civil ServiceCommission. 123Congress checks the other branches of government primarily through its lawmaking powers. Congress can create administrative agencies, dene their powersand duties, x the terms of ocers and their compensation. 124 It can also createcourts, dene their jurisdiction and reorganize the judiciary so long as it does notundermine the security of tenure of its members. 125 The power of Congress doesnot end with the nished task of legislation. Concomitant with its principalpower to legislate is the auxiliary power to ensure that the laws it enacts arefaithfully executed. As well stressed by one scholar, the legislature "xes themain lines of substantive policy and is entitled to see that administrative policyis in harmony with it; it establishes the volume and purpose of publicexpenditures and ensures their legality and propriety; it must be satised thatinternal administrative controls are operating to secure economy and eciency;and it informs itself of the conditions of administration of remedial measure." 126Concept and bases of congressional oversightBroadly dened, the power of oversight embraces all activities undertaken byCongress to enhance its understanding of and inuence over the implementationof legislation it has enacted. 127 Clearly, oversight concerns post-enactmentmeasures undertaken by Congress: (a) to monitor bureaucratic compliance withprogram objectives, (b) to determine whether agencies are properlyadministered, (c) to eliminate executive waste and dishonesty, (d) to preventexecutive usurpation of legislative authority, and (d) to assess executiveconformity with the congressional perception of public interest. 128The power of oversight has been held to be intrinsic in the grant of legislativepower itself and integral to the checks and balances inherent in a democraticsystem of government. 129 Among the most quoted justications for this powerare the writings of John Stuart Mill and Woodrow Wilson. In his Consideration ofRepresentative Government, 130 Mill wrote that the duty of the legislature is "towatch and control the government; to throw the light of publicity on its acts; tocompel a full exposition and justication of all of them which any one considersobjectionable; and to censure them if found condemnable." 131 Wilson went onestep farther and opined that the legislature's informing function should beCD Technologies Asia, Inc. 2016

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preferred to its legislative function. He emphasized that "[E]ven more important

than legislation is the instruction and guidance in political aairs which thepeople might receive from a body which kept all national concerns suused in abroad daylight of discussion." 132

Over the years, Congress has invoked its oversight power with increasedfrequency to check the perceived "exponential accumulation of power" by theexecutive branch. 133 By the beginning of the 20th century, Congress hasdelegated an enormous amount of legislative authority to the executive branchand the administrative agencies. Congress, thus, uses its oversight power tomake sure that the administrative agencies perform their functions within theauthority delegated to them. 134The oversight power has also been used to ensure the accountability ofregulatory commissions like the Securities and Exchange Commission and theFederal Reserve Board, often referred to as representing a "headless fourthbranch of government." 135 Unlike other ordinary administrative agencies, thesebodies are independent from the executive branch and are outside the executivedepartment in the discharge of their functions. 136Categories of congressional oversight functionsThe acts done by Congress purportedly in the exercise of its oversight powersmay be divided into three categories, namely: scrutiny, investigation andsupervision. 137a. ScrutinyCongressional scrutiny implies a lesser intensity and continuity of attention toadministrative operations. 138 Its primary purpose is to determine economy andeciency of the operation of government activities. In the exercise of legislativescrutiny, Congress may request information and report from the other branchesof government. It can give recommendations or pass resolutions forconsideration of the agency involved.Legislative scrutiny is based primarily on the power of appropriation of Congress.Under the Constitution, the "power of the purse" belongs to Congress. 139 ThePresident may propose the budget, but still, Congress has the nal say onappropriations. Consequently, administrative ocials appear every year beforethe appropriation committees of Congress to report and submit a budgetestimate and a program of administration for the succeeding scal year. Duringbudget hearings, administrative ocials defend their budget proposals.The power of appropriation carries with it the power to specify the project oractivity to be funded. 140 Hence, the holding of budget hearing has been the usualmeans of reviewing policy and of auditing the use of previous appropriation toascertain whether they have been disbursed for purposes authorized in anappropriation act. The consideration of the budget is also an opportunity for thelawmakers to express their condence in the performance of a Cabinet Secretaryor to manifest their disgust or disfavor of the continuance in oce of abureaucrat. 141 Congress can even curtail the activities of the administrativeagencies by denial of funds. 142 In the United States, for instance, CongressCD Technologies Asia, Inc. 2016

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brought to end the existence of the Civilian Conservation Corps, the NationalYouth Administration and the National Resources Planning Board, simply bydenying them any appropriation. 143But legislative scrutiny does not end in budget hearings. Congress can ask theheads of departments to appear before and be heard by either House of Congresson any matter pertaining to their departments. Section 22, Article VI of the 1987Constitution provides:The heads of departments may, upon their own initiative, with theconsent of the President, or upon the request of either House, as therules of each House shall provide, appear before and be heard by suchHouse on any matter pertaining to their departments. Written questionsshall be submitted to the President of the Senate or the Speaker of theHouse of Representatives at least three days before their scheduledappearance. Interpellations shall not be limited to written questions, butmay cover matters related thereto. When the security of the State or thepublic interest so requires and the President so states in writing, theappearance shall be conducted in executive session.

This provision originated from the Administrative Code 144 and was later elevatedto the level of a constitutional provision due to its "great value in the work ofthe legislature." 145 In drafting the 1935 Constitution, some delegates opposedthe provision arguing that it is a feature of a parliamentary system and itsadoption would make our government a "hybrid system." 146 But mainly attackedwas the provision authorizing the department secretaries on their own initiativeto appear before the legislature, with the right to be heard on any matterpertaining to their departments. It was pointed out that this would "give achance to the department secretaries to lobby for items in the appropriation billor for provisions of other bills in which they had special interest, permitting themto bear inuence and pressure upon Members of the law-making body, inviolation of the principle of separation of powers underlying the Constitution."147 Despite the objections, the provision was adopted to "prevent the raising ofany question with respect to the constitutionality of the practice" and "to makeopen and public the relations between the legislative and the executivedepartments." 148 As incorporated in the 1935 Constitution, the provision reads:The heads of departments upon their own initiative or upon the requestof the National Assembly on any matter pertaining to their departmentsunless the public interest shall require otherwise and the President shallstate so in writing. 149

The whole tenor of the provision was permissive: the department heads couldappear but the legislative was not obliged to entertain them; reciprocally, thelegislature could request their appearance but could not oblige them especially ifthe President objected. 150 The rule radically changed, however, with theadoption of the 1973 Constitution, establishing a parliamentary system ofgovernment. In a parliamentary system, the administration is responsible to theParliament and hence, the Prime Minister and the Cabinet Members may be"required to appear and answer questions and interpellations" to give an accountof their stewardship during a "question hour," viz:Sec. 12 (1) There shall be a question hour at least once a month or asoften as the Rules of the Batasang Pambansa may provide, which shall beCD Technologies Asia, Inc. 2016

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included in its agenda, during which the Prime Minister, the Deputy PrimeMinister or any Minister may be required to appear and answer questionsand interpellations by Members of the Batasang Pambansa. Writtenquestions shall be submitted to the Speaker at least three days before ascheduled question hour. Interpellations shall not be limited to the writtenquestions, but may cover matters related thereto. The agenda shallspecify the subjects of the question hour. When the security of the Stateso requires and the President so states in writing, the question hour shallbe conducted in executive session.

The "question hour" was retained despite the reversion to the presidentialsystem in 1981. During the deliberations of the 1987 Constitution, the report ofthe legislative 'committee called for the adoption of the "question hour" or thefollowing reasons:. . . Its purposes are to elicit concrete information from theadministration, to request its intervention, and when necessary, toexpose abuses and seek redress. The procedure provides the oppositionwith a means of discovering the government's weak points and becauseof the publicity it generates, it has a salutary inuence on theadministration. On the whole, because of the detailed facts elicited duringthe interpellation or in the written answers, it will help members tounderstand the complicated subject matter of bills and statutorymeasures laid before the Assembly. It may be added that the popularityof this procedure can be attributed to the fact that in making use of hisright to ask questions, the member is a completely free agent of thepeople. The only limits on his actions are the rules governing theadmissibility of questions concerned with matters of form and not withthe merits of the issue at hand. The fact that we also impose a time limitmeans that the government is obliged to furnish the information askedfor and this obligation is what gives the procedure its real strength. . . .151

This proposal was vigorously opposed on the ground of separation of powers.

CONCOM Delegate Christian Monsod pointed out that the provision washistorically intended to apply to members of the legislature who are in theexecutive branch typical in a parliamentary form of government. In ne, the"question hour" was conducted on a peer basis. But since the delegates decidedto adopt a presidential form of government, cabinet members are purely alteregos of the President and are no longer members of the legislature. To requirethem to appear before the legislators and account for their actions "puts them onunequal terms with the legislators" and "would violate the separation of powersof the executive and the legislative branches." 152 Delegate Monsod, however,recognized that a mechanism should be adopted where Cabinet members may besummoned and may, even on their own initiative, appear before the legislature.This, he said, would promote coordination without subordinating one body toanother. He thus suggested that the original tenor of the provision in the 1935Constitution be retained. 153After much deliberation, delegate Monsod's suggestion prevailed. Thus, thePresident may or may not consent to the appearance of the heads ofdepartments; and even if he does, he may require that the appearance be inexecutive session. Reciprocally, Congress may refuse the initiative taken by adepartment secretary.CD Technologies Asia, Inc. 2016

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Likewise, Congress exercises legislative scrutiny thru its power of conrmation.

Section 18, Article VI of the 1987 Constitution provides for the organization of aCommission on Appointments consisting of the President of the Senate as exocio Chairman, twelve Senators and twelve members of the House ofRepresentatives, elected by each House on the basis of proportionalrepresentation from the political parties or organizations registered under theparty-list system. Consent of the Commission on Appointments is needed for thenominees of the President for the following positions: (a) heads of executivedepartments, (b) ambassadors, other public ministers and consuls, (c) ocers ofthe armed forces from the rank of colonel or naval captain, and (d) other ocerswhose appointments are vested with the President under the Constitution. 154

Through the power of conrmation, Congress shares in the appointing power of

the executive. Theoretically, it is intended to lessen political considerations in theappointment of ocials in sensitive positions in the government. It also providesCongress an opportunity to nd out whether the nominee possesses thenecessary qualications, integrity and probity required of all public servants.In the United States, apart from the appropriation and conrmation powers ofthe U.S. Congress, legislative scrutiny nds expression in the LegislativeReorganization Act of 1946 charging all House and Senate Standing Committeeswith continuous vigilance over the execution of any and all laws falling withintheir respective jurisdictions "with a view to determining its economy ande ciency." 155 Pursuant to this law, each committee was authorized to hire acertain number of sta employees. All Senate committees were likewise giventhe power to subpoena witnesses and documents. 156b. Congressional investigationWhile congressional scrutiny is regarded as a passive process of looking at thefacts that are readily available, congressional investigation involves a moreintense digging of facts. 157 The power of Congress to conduct investigation isrecognized by the 1987 Constitution under Section 21, Article VI, viz:The Senate or the House of Representatives or any of its respectivecommittee may conduct inquiries in aid of legislation in accordance withits duly published rules of procedure. The rights of persons appearing inor aected by such inquiries shall be respected.

But even in the absence of an express provision in the Constitution,

congressional investigation has been held to be an essential and appropriateauxiliary to the legislative function. In the United States, the lack of aconstitutional provision specically authorizing the conduct of legislativeinvestigations did not deter its Congresses from holding investigation onsuspected corruption, mismanagement, or ineciencies of government ocials.Exercised rst in the failed St. Clair expedition in 1792, the power to conductinvestigation has since been invoked in the Teapot Dome, Watergate, IranContra, and Whitewater controversies. 158 Subsequently, in a series of decisions,the Court recognized "the danger to eective and honest conduct of theGovernment if the legislative power to probe corruption in the Executive branchwere unduly unhampered." 159CD Technologies Asia, Inc. 2016

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In Eastland v. United States Servicemen's Fund, 160 the U.S. Supreme Court ruledthat the scope of the congressional power of inquiry "is penetrating and farreaching as the potential power to enact and appropriate under theConstitution." 161 It encompasses everything that concerns the administration ofexisting laws as well as proposed or possibly needed statutes. 162 In the exerciseof this power, congressional inquiries can reach all sources of information and inthe absence of countervailing constitutional privilege or self-imposed restrictionsupon its authority, Congress and its committees, have virtually, plenary power tocompel information needed to discharge its legislative functions from executiveagencies, private persons and organizations. Within certain constraints, theinformation so obtained may be made public. 163 In McGrain v. Daugherty, 164 itheld that "a legislative body cannot legislate wisely or eectively in the absenceof information respecting the conditions which the legislation is intended toeect change." 165 But while the congressional power of inquiry is broad, it is notunlimited. No inquiry is an end in itself; it must be related to, and in furtheranceof, a legitimate task of Congress." 166 Moreover, an investigating committee hasonly the power to inquire into matters within the scope of the authoritydelegated to it by its parent body. 167 But once its jurisdiction and authority, andthe pertinence of the matter under inquiry to its area of authority areestablished, a committee's investigative purview is substantial and wide-ranging.168

American jurisprudence upholding the inherent power of Congress to conduct

investigation has been adopted in our jurisdiction in Arnault v. Nazareno, 169decided in 1950, when no provision yet existed granting Congress the power toconduct investigation. In the said case, the Senate passed Resolution No. 8creating a special committee to investigate the Buenavista and the TambobongEstates Deal wherein the government was allegedly defrauded P5,000,000.00.The special committee examined various witnesses, among whom was Jean L.Arnault. Due to the refusal of Arnault to answer a question which he claimed tobe "self-incriminatory," 170 the Senate passed a resolution citing Arnault incontempt. The Senate committed him to the custody of the Sergeant-at-Armsand ordered his imprisonment until he shall have answered the question. Arnaultled a petition before this Court contending that (a) the Senate has no power topunish him for contempt; (b) the information sought to be obtained by theSenate is immaterial and will not serve any intended or purported legislation;and (c) the answer required of him will incriminate him.Upholding the power of the Senate to punish Arnault for contempt, the Courtruled as follows:Although there is no provision in the Constitution expressly investingeither House of Congress with power to make investigations and exacttestimony to the end that it may exercise its legislative functionsadvisedly and eectively, such power is so far incidental to the legislativefunction as to be implied. In other words, the power of inquiry withprocess to enforce it is an essential and appropriate auxiliary to thelegislative function. A legislative body cannot legislate wisely or eectivelyin the absence of information respecting the conditions which legislationis intended to aect or change; and where the legislative body does notitself possess the requisite information which is not frequently true recourse must be had to others who do possess it. Experience hasCD Technologies Asia, Inc. 2016

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shown that mere requests for such information are often unavailing, andalso that information which is volunteered is not always accurate orcomplete; so some means of compulsion is essential to obtain what isneeded. . . The fact that the Constitution expressly gives the Congressthe power to punish its Members for disorderly behaviour, does not bynecessary implication exclude the power to punish for contempt anyother person. 171

The Court further ruled that the power of the Senate to punish a witness forcontempt does not terminate upon the adjournment of the session. 172 It heldthat the investigation was within the power of the Senate since the "transactioninvolved a questionable and allegedly unnecessary and irregular expenditure ofno less than P5,000,000.00 of public funds, of which the Congress is theconstitutional guardian." 173 The investigation was also found to be "in aid oflegislation." As result of the yet unnished investigation, the Court noted thatthe investigating committee has recommended, and the Senate has approvedthree bills. 174The Court further held that once an inquiry is admitted or established to bewithin the jurisdiction of a legislative body to make, the investigating committeehas the power to require a witness to answer any question pertinent to thatinquiry, subject to his constitutional right against self-incrimination. The inquirymust be material or necessary to the exercise of a power in it vested by theConstitution. Hence, a witness can not be coerced to answer a question thatobviously has no relation to the subject of the inquiry. But the Court explainedthat "the materiality of the question must be determined by its direct relation tothe subject of the inquiry and not by its indirect relation to any proposed orpossible legislation." The reason is that the necessity or lack of necessity forlegislative action and the form and character of the action itself are determinedby the sum total of the information to be gathered as a result of theinvestigation, and not by a fraction of such information elicited from a singlequestion. 175Finally, the Court ruled that the ground on which Arnault invoked the rightagainst self-incrimination "is too shaky, inrm, and slippery to aord him safety."176 It noted that since Arnault himself said that the transaction was legal, andthat he gave the P440,000.00 to a representative of Burt in compliance with thelatter's verbal instruction, there is therefore no basis upon which to sustain hisclaim that to reveal the name of that person would incriminate him. 177 It heldthat it is not enough for the witness to say that the answer will incriminate himfor he is not the sole judge of his liability, thus:. . . [T]he danger of self-incrimination must appear reasonable and real tothe court, from all the circumstances and from the whole case, as well asfrom his general conception of the relations of the witness . . . The factthat the testimony of the witness may tend to show that he has violatedthe law is not sucient to entitle him to claim the protection of theconstitutional provision against self-incrimination, unless he is at the sametime liable to prosecution and punishment for such violation. The witnesscannot assert his privilege by reason of some fanciful excuse, forprotection against an imaginary danger, or to secure immunity to a thirdperson. 178CD Technologies Asia, Inc. 2016

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As now contained in the 1987 Constitution, the power of Congress to investigate

is circumscribed by three limitations, namely: (a) it must be in aid of itslegislative functions, (b) it must be conducted in accordance with duly publishedrules of procedure, and (c) the persons appearing therein are aorded theirconstitutional rights.I n Bengzon, Jr. v. Senate Blue Ribbon Committee, 179 this Court held that thesenate committee exceeded the permissible exercise of legislative investigation.The case started with a speech by Senator Enrile suggesting the need todetermine possible violation of law in the alleged transfer of some properties offormer Ambassador Benjamin "Kokoy" Romualdez to the Lopa Group ofCompanies. The Senate Blue Ribbon Committee decided to investigate thetransaction purportedly in aid of legislation. When the Blue Ribbon Committeesummoned the petitioners to appear, they asked this Court for a restrainingorder on the ground, among others, that the investigation was not in aid oflegislation and that their appearance before the investigating body couldprejudice their case before the Sandiganbayan. Ruling in favor of the petitioner,we held as follows:

Verily, the speech of Senator Enrile contained no suggestion of

contemplated legislation; he merely called upon the Senate to look into apossible violation of Sec. 5 of RA No. 3019, otherwise known as "The AntiGraft and Corrupt Practices Act." In other words, the purpose of theinquiry to be conducted by respondent Blue Ribbon Committee was tond out whether or not the relatives of President Aquino, particularly, Mr.Ricardo Lopa, had violated the law in connection with the alleged sale ofthe 36 or 39 corporations belonging to Benjamin "Kokoy" Romualdez tothe Lopa Group. There appears to be, therefore, no intended legislationinvolved.

The conduct of legislative investigation is also subject to the rules of each House.In the House of Representatives, 180 an inquiry may be initiated or conducted bya committee motu proprio on any matter within its jurisdiction upon a majorityvote of all its Members 181 or upon order of the House of Representatives 182through:(1) the referral of a privilege speech containing or conveying arequest or demand for the conduct of an inquiry, to theappropriate committee, upon motion of the Majority Leader orhis deputies; or(2) the adoption of a resolution directing a committee to conduct aninquiry reported out by the Committee on Rules after makinga determination on the necessity and propriety of the conductof an inquiry by such committee: Provided, That all resolutionsdirecting any committee to conduct an inquiry shall bereferred to the Committee on Rules; or(3) the referral by the Committee on Rules to the appropriatecommittee, after making a determination on the necessity andpropriety of the conduct of inquiry by such committee, of apetition led or information given by a Member of the HouseCD Technologies Asia, Inc. 2016

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requesting such inquiry and endorsed by the Speaker:

Provided, That such petition or information shall be givenunder oath, stating the facts upon which it is based, andaccompanied by supporting adavits. 183The committee to which a privilege speech, resolution, petition or informationrequesting an inquiry is referred may constitute and appoint sub-committeescomposed of at least one-third (1/3) of the committee for the purpose ofperforming any and all acts which the committee as a whole is authorized toperform, except to punish for contempt. In case a privilege speech is referred totwo or more committees, a joint inquiry by the said committees shall beconducted. The inquiries are to be held in public except when the committee orsub-committee deems that the examination of a witness in a public hearing mayendanger national security. In which case, it shall conduct the hearing in anexecutive session. 184The Rules further provide that "the ling or pendency of a case before any court,tribunal or quasi-judicial or administrative bodies shall not stop or abate anyinquiry conducted to carry out a specic legislative purpose." 185 In exercise ofcongressional inquiry, the committee has the power "to issue subpoena andsubpoena duces tecum to a witness in any part of the country, signed by thechairperson or acting chairperson and the Speaker or acting Speaker." 186Furthermore, the committee may, by a vote of two-thirds (2/3) of all itsmembers constituting a quorum, punish for contempt any person who: (a)refuses, after being duly summoned, to obey such summons without legalexcuse; (b) refuses to be sworn or placed under armation; (c) refuses to answerany relevant inquiry; (d) refuses to produce any books, papers, documents orrecords that are relevant to the inquiry and are in his/her possession; (e) acts in adisrespectful manner towards any member of the Committee or commitsmisbehavior in the presence of the committee; or (f) unduly interferes in theconduct of proceedings during meetings. 187Nevertheless, any person called to be a witness may be represented by a counsel188 and is entitled to all rights including the right against self-incrimination. 189c. Legislative supervisionThe third and most encompassing form by which Congress exercises its oversightpower is thru legislative supervision. "Supervision" connotes a continuing andinformed awareness on the part of a congressional committee regardingexecutive operations in a given administrative area. 190 While both congressionalscrutiny and investigation involve inquiry into past executive branch actions inorder to inuence future executive branch performance, congressionalsupervision allows Congress to scrutinize the exercise of delegated law-makingauthority, and permits Congress to retain part of that delegated authority.Congress exercises supervision over the executive agencies through its vetopower. It typically utilizes veto provisions when granting the President or anexecutive agency the power to promulgate regulations with the force of law.These provisions require the President or an agency to present the proposedregulations to Congress, which retains a "right" to approve or disapprove anyregulation before it takes eect. Such legislative veto provisions usually providethat a proposed regulation will become a law after the expiration of a certainCD Technologies Asia, Inc. 2016

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period of time, only if Congress does not armatively disapprove of the

regulation in the meantime. Less frequently, the statute provides that a proposedregulation will become law if Congress armatively approves it. 191T h e legislative vetowas developed initially in response to the problems ofreorganizing the U.S. Government structure during the Great Depression in early20th century. When U.S. President Hoover requested authority to reorganize thegovernment in 1929, he coupled his request with a proposal for legislativereview. He proposed that the Executive "should act upon approval of a jointCommittee of Congress or with the reservation of power of revision by Congresswithin some limited period adequate for its consideration." 192 Congress followedPresident Hoover's suggestion and authorized reorganization subject to legislativereview. 193 Although the reorganization authority reenacted in 1933 did notcontain a legislative veto provision, the provision returned during the Rooseveltadministration and has since been renewed several times. 194 Over the years, theprovision was used extensively. Various American Presidents submitted toCongress some 115 Reorganization Plans, 23 of which were disapprovedpursuant to legislative veto provisions. 195During World War II, Congress and the President applied the legislative vetoprocedure to resolve the delegation problem involving national security andforeign aairs. The legislative veto oered the means by which Congress couldconfer additional authority to the President while preserving its ownconstitutional role. During this period, Congress enacted over 30 statutesconferring powers on the Executive with legislative veto provisions. 196After World War II, legislative veto provisions have been inserted in lawsdelegating authority in new areas of governmental involvement including thespace program, international agreements on nuclear energy, tari arrangements,and adjustment of federal pay rates. 197 It has also gured prominently inresolving a series of major constitutional disputes between the President andCongress over claims of the President to broad impoundment, war and nationalemergency powers. 198 Overall, 295 congressional veto-type procedures havebeen inserted in 196 dierent statutes since 1932 when the rst veto provisionwas enacted into law. 199Supporters of legislative veto stress that it is necessary to maintain the balanceof power between the legislative and the executive branches of government as itoers lawmakers a way to delegate vast power to the executive branch or toindependent agencies while retaining the option to cancel particular exercise ofsuch power without having to pass new legislation or to repeal existing law. 200They contend that this arrangement promotes democratic accountability as itprovides legislative check on the activities of unelected administrative agencies.201 One proponent thus explains:It is too late to debate the merits of this delegation policy: the policy is toodeeply embedded in our law and practice. It suces to say that thecomplexities of modern government have often led Congress whetherby actual or perceived necessity to legislate by declaring broad policygoals and general statutory standards, leaving the choice of policyoptions to the discretion of an executive ocer. Congress articulateslegislative aims, but leaves their implementation to the judgment of partieswho may or may not have participated in or agreed with the developmentCD Technologies Asia, Inc. 2016

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of those aims. Consequently, absent safeguards, in many instances the

reverse of our constitutional scheme could be eected: Congressproposes, the Executive disposes. One safeguard, of course, is thelegislative power to enact new legislation or to change existing law. Butwithout some means of overseeing post enactment activities of theexecutive branch, Congress would be unable to determine whether itspolicies have been implemented in accordance with legislative intent andthus whether legislative intervention is appropriate. 202

Its opponents, however, criticize the legislative veto as undue encroachment

upon the executive prerogatives. They urge that any post-enactment measuresundertaken by the legislative branch should be limited to scrutiny andinvestigation; any measure beyond that would undermine the separation ofpowers guaranteed by the Constitution. 203 They contend that legislative vetoconstitutes an impermissible evasion of the President's veto authority andintrusion into the powers vested in the executive or judicial branches ofgovernment. 204 Proponents counter that legislative veto enhances separation ofpowers as it prevents the executive branch and independent agencies fromaccumulating too much power. 205 They submit that reporting requirements andcongressional committee investigations allow Congress to scrutinize only theexercise of delegated law-making authority. They do not allow Congress toreview executive proposals before they take eect and they do not aord theopportunity for ongoing and binding expressions of congressional intent. 206 Incontrast, legislative veto permits Congress to participate prospectively in theapproval or disapproval of "subordinate law" or those enacted by the executivebranch pursuant to a delegation of authority by Congress. They further arguethat legislative veto "is a necessary response by Congress to the accretion ofpolicy control by forces outside its chambers." In an era of delegated authority,they point out that legislative veto "is the most ecient means Congress has yetdevised to retain control over the evolution and implementation of its policy asdeclared by statute." 207

In Immigration and Naturalization Service v. Chadha, 208 the U.S. Supreme Courtresolved the validity of legislative veto provisions. The case arose from the orderof the immigration judge suspending the deportation of Chadha pursuant to 244(c)(1) of the Immigration and Nationality Act. The United States House ofRepresentatives passed a resolution vetoing the suspension pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to invalidate thedecision of the executive branch to allow a particular deportable alien to remainin the United States. The immigration judge reopened the deportationproceedings to implement the House order and the alien was ordered deported.The Board of Immigration Appeals dismissed the alien's appeal, holding that ithad no power to declare unconstitutional an act of Congress. The United StatesCourt of Appeals for Ninth Circuit held that the House was without constitutionalauthority to order the alien's deportation and that 244(c)(2) violated theconstitutional doctrine on separation of powers.On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But theCourt shied away from the issue of separation of powers and instead held thatthe provision violates the presentment clause and bicameralism. It held that theone-house veto was essentially legislative in purpose and eect. As such, it is

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one-house veto was essentially legislative in purpose and eect. As such, it is

subject to the procedures set out in Article I of the Constitution requiring thepassage by a majority of both Houses and presentment to the President. Thus:Examination of the action taken here by one House pursuant to 244(c)(2) reveals that it was essentially legislative in purpose and eect.In purporting to exercise power dened in Art I, 8, cl 4, to "establish auniform Rule of Naturalization," the House took action that had thepurpose and eect of altering the legal rights, duties, and relations ofpersons, including the Attorney General, Executive Branch ocials andChadha, all outside the Legislative Branch. Section 244(c)(2) purports toauthorize one House Congress to require the Attorney General to deportan individual alien whose deportation otherwise would be canceled under 244. The one-House veto operated in these cases to overrule theAttorney General and mandate Chadha's deportation; absent the Houseaction, Chadha would remain in the United States. Congress has actedand its action altered Chadha's status.The legislative character of the one-House veto in these cases isconrmed by the character of the congressional action it supplants.Neither the House of Representatives nor the Senate contends that,absent the veto provision in 244(c)(2), either of them, or both of themacting together, could eectively require the Attorney General, in exerciseof legislatively delegated authority, had determined the alien shouldremain in the United States. Without the challenged provision in 244(c)(2), this could have been achieved, if at all, only by legislationrequiring deportation. Similarly, a veto by one House of Congress under 244(c)(2) cannot be justied as an attempt at amending the standardsset out in 244(a)(1), or as a repeal of 244 as applied to Chadha.Amendment and repeal of statutes, no less than enactment, mustconform with Art I.The nature of the decision implemented by one-House veto in thesecases further manifests its legislative character. After long experiencewith the clumsy, time-consuming private bill procedure, Congress made adeliberate choice to delegate to the Executive Branch, and specically tothe Attorney General, the authority to allow deportable aliens to remain inthis country in certain specied circumstances. It is not disputed that thischoice to delegate authority is precisely the kind of decision that can beimplemented only in accordance with the procedures set out in Art I.Disagreement with the Attorney General's decision on Chadha'sdeportation that is, Congress' decision to deport Chadha no lessthan Congress' original choice to delegate to the Attorney General theauthority to make decision, involves determinations of policy thatCongress can implement in only one way; bicameral passage followed bypresentment to the President. Congress must abide by its delegation ofauthority until that delegation is legislatively altered or revoked. 209

Two weeks after the Chadha decision, the Court upheld, in

memorandum decision, two lower court decisions invalidating the legislativeveto provisions in the Natural Gas Policy Act of 1978 210 and the Federal TradeCommission Improvement Act of 1980. 211 Following this precedence, lowercourts invalidated statutes containing legislative veto provisions althoughsome of these provisions required the approval of both Houses of Congressand thus met the bicameralism requirement of Article I. Indeed, some of theseCD Technologies Asia, Inc. 2016

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veto provisions were not even exercised. 212

Given the concept and conguration of the power of congressional oversight,next level of inquiry is whether congress exceeded its permissible exercise incase at bar. But before proceeding, a discussion of the nature and powers ofCommission on Elections as provided in the 1987 Constitution is decisive toissue.

thethethethe

Congressional Oversight and COMELEC

The Commission on Elections (COMELEC) is a constitutional body exclusivelycharged with the enforcement and administration of "all laws and regulationsrelative to the conduct of an election, plebiscite, initiative, referendum, andrecall," 213 and is invested with the power to decide all questions aectingelections save those involving the right to vote. 214Given its important role in preserving the sanctity of the right of surage, 215 theCOMELEC was purposely constituted as a body separate from the executive,legislative, and judicial branches of government. 216 Originally, the power toenforce our election laws was vested with the President and exercised throughthe Department of the Interior. According to Dean Sinco, 217 however, the viewultimately emerged that an independent body could better protect the right ofsurage of our people. Hence, the enforcement of our election laws, while anexecutive power, was transferred to the COMELEC.Th e shift to a modied parliamentary system with the adoption of the 1973Constitution did not alter the character of COMELEC as an independent body. 218Indeed, a "denite tendency to enhance and invigorate the role of theCommission on Elections as the independent constitutional body charged withthe safeguarding of free, peaceful and honest elections" has been observed. 219The 1973 Constitution broadened the power of the COMELEC by making it thesole judge of all election contests relating to the election, returns andqualications of members of the national legislature and elective provincial andcity ocials. 220 Thus, the COMELEC was given judicial power aside from itstraditional administrative and executive functions.The trend towards strengthening the COMELEC continued with the 1987Constitution. Today, the COMELEC enforces and administers all laws andregulations relative to the conduct of elections, plebiscites, initiatives, referendaand recalls. Election contests involving regional, provincial and city electiveocials are under its exclusive original jurisdiction while all contests involvingelective municipal and barangay ocials are under its appellate jurisdiction. 221Several safeguards have been put in place to protect the independence of theCOMELEC from unwarranted encroachment by the other branches ofgovernment. While the President appoints the Commissioners with theconcurrence of the Commission on Appointments, the Commissioners are notaccountable to the President in the discharge of their functions. They have a xedtenure and are removable only by impeachment. 222 To ensure that not allCommissioners are appointed by the same President at any one time, astaggered system of appointment was devised. Thus, of the Commissioners rstappointed, three shall hold oce for seven years, three for ve years, and the lastthree for three years. 223 Reappointment and temporary designation orCD Technologies Asia, Inc. 2016

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appointment is prohibited. 224 In case of vacancy, the appointee shall only servethe unexpired term of the predecessor. 225 The COMELEC is likewise granted thepower to promulgate its own rules of procedure, 226 and to appoint its ownocials and employees in accordance with Civil Service laws. 227The COMELEC exercises quasi-judicial powers but it is not part of the judiciary.This Court has no general power of supervision over the Commission onElections except those specically granted by the Constitution. 228 As such, theRules of Court are not applicable to the Commission on Elections. 229 In addition,the decisions of the COMELEC are reviewable only by petition for certiorari ongrounds of grave abuse of discretion, 230 viz:Conceived by the charter as the eective instrument to preserve thesanctity of popular surage, endowed with independence and all theneeded concomitant powers, it is but proper that the Court shouldaccord the greatest measure of presumption of regularity to its course ofaction and choice of means in performing its duties, to the end that itmay achieve its designed place in the democratic fabric of ourgovernment. Ideally, its members should be free from all suspicions ofpartisan inclinations, but the fact that actually some of them have hadstints in the arena of politics should not, unless the contrary is shown,serve as basis for denying to its actuations the respect and considerationthat the Constitution contemplates should be accorded to it, in the samemanner that the Supreme Court itself which from time to time may havemembers drawn from the political ranks or even from the military is at alltimes deemed insulated from every degree or form of external pressureand inuence as well as improper internal motivations that could arisefrom such background or orientation.

We hold, therefore, that under the existing constitutional and statutory

provisions, the certiorari jurisdiction of the Court over orders, rulings anddecisions of the Comelec is not as broad as it used to be and should beconned to instances of grave abuse of discretion amounting to patentand substantial denial of due process. 231

The COMELEC is, however, subject to congressional scrutiny especially during

budget hearings. But Congress cannot abolish the COMELEC as it can in case ofother agencies under the executive branch. The reason is obvious. The COMELECis not a mere creature of the legislature; it owes its origin from the Constitution.Furthermore, the salary of the Chairman and the Commissioners cannot bedecreased during their tenure. 232 Enjoying scal autonomy, the COMELEC has awider discretion in the disbursement and allocation of approved appropriations. Tosafeguard the COMELEC from undue legislative interference, the 1987Constitution provides that its approved annual appropriations are to beautomatically and regularly released. 233 Also, Congress has no power to call thecommissioners of the COMELEC to a question hour. The Constitution providesthat the question hour is limited to heads of departments under the Executivebranch, and the deliberations during the drafting of the 1987 Constitution clearlyreect this sentiment. Be that as it may, the COMELEC is mandated to "submitto the President and the Congress a comprehensive report on the conduct of eachelection, plebiscite, initiative, referendum and recall." 234 This provision allowsCongress to review and assess the eectivity of election laws and if necessary,

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enact new laws or amend existing statutes.

Be that as it may, I respectfully submit that the legislative veto power orcongressional oversight power over the authority of COMELEC to issue rules andregulations in order to enforce election laws is unconstitutional.As aforediscussed, the Constitution divided the powers of our government intothree categories, legislative, executive, and judicial. Although not "hermeticallysealed" from one another, the powers of the three branches are functionallyidentiable. In this respect, legislative power is generally exercised in theenactment of the law; executive power, in its execution; and judicial power, in itsinterpretation. In the absence of specic provision in the Constitution, it isfundamental under the principle of separation of powers that one branch cannotexercise or share the power of the other.In addition, our Constitution created other oces aside from the executive, thelegislative and the judiciary and dened their powers and prerogatives. Amongthese bodies especially created by the Constitution itself is the COMELEC.The COMELEC occupies a distinct place in our scheme of government. As theconstitutional body charged with the administration of our election laws, it isendowed with independence in the exercise of some of its powers and thedischarge of its responsibilities. The power to promulgate rules and regulations inorder to administer our election laws belongs to this category of powers as thishas been vested exclusively by the 1987 Constitution to the COMELEC. It cannotbe trenched upon by Congress in the exercise of its oversight powers.I n Gallardo v. Tabamo, Jr., 235 this Court traced the origin of COMELEC's power topromulgate rules and regulations. It was initially a statutory grant. Both the1935 and the 1973 Constitutions did not explicitly grant the COMELEC thepower to promulgate rules and regulations. The power was vested by Congressto the COMELEC in the Omnibus Election Code, 236 viz:Sec. 52. Powers and functions of the Commission on Elections. Inaddition to the powers and functions conferred upon it by theConstitution, the Commission shall have the exclusive charge of theenforcement and administration of all laws relative to the conduct ofelections for the purpose of ensuring free, orderly and honest elections,and shall:xxx xxx xxx(c) Promulgate rules and regulations implementing the provisions of thisCode or other laws which the Commission is required to enforce andadminister.xxx xxx xxx

This statutory power was elevated to a constitutional status with the insertion ofthe word "regulations" in Section 2(1) of Article IX-C of the 1987 Constitution,viz:While under the 1935 Constitution it had "exclusive charge of theenforcement and administration of all laws relative to the conduct ofelections," exercised "all other functions . . . conferred upon it by law" andCD Technologies Asia, Inc. 2016

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had the power to deputize all law enforcement agencies and

instrumentalities of the Government for the purpose of insuring free,orderly and honest elections, and under the 1973 Constitution it had,inter alia, the power to (a) "[E]nforce and administer all laws relative to theconduct of elections" (b) "[D]eputize, with the consent or at the instanceof the Prime Minister, law enforcement agencies and instrumentalities ofthe Government, including the Armed Forces of the Philippines, for thepurpose of ensuring free, orderly, and honest elections," and (c)"[P]erform such other functions as may be provided by law," it was notexpressly vested with the power to promulgate regulations relative to theconduct of an election. That power could only originate from a special lawenacted by Congress; this is the necessary implication of the aboveconstitutional provision authorizing the Commission to "[P]erform suchother functions as may be provided by law."The present Constitution, however, implicitly grants the Commission thepower to promulgate such rules and regulations. The pertinent portion ofSection 2 of Article IX-C thereof reads as follows:"SEC. 2. The Commission on Elections shall exercise the following powersand functions:(1) Enforce and administer all laws and regulations relative to the conductof an election, plebiscite, initiative, referendum, and recall." (italicssupplied)xxx xxx xxxThe word regulations is not found in either the 1935 or 1973Constitutions. It is thus clear that its incorporation into the presentConstitution took into account the Commission's power under theOmnibus Election Code (Batas Pambansa Blg. 881), which was already inforce when the said Constitution was drafted and ratied, to:xxx xxx xxx"Promulgate rules and regulations implementing the provisions of thisCode or other laws which the Commission is required to enforce andadminister. . . ."Hence, the present Constitution upgraded to a constitutional status theaforesaid statutory authority to grant the Commission broader and moreexible powers to eectively perform its duties and to insulate it furtherfrom legislative intrusions. Doubtless, if its rule-making power is made todepend on statutes, Congress may withdraw the same at any time.Indeed, the present Constitution envisions a truly independentCommission on Elections committed to ensure free, orderly, honest,peaceful and credible elections, and to serve as the guardian of thepeople's sacred right of surage the citizenry's vital weapon in eectinga peaceful change of government and in achieving and promoting politicalstability. 237

The elevation of the COMELEC's power to promulgate rules and regulations in

the 1987 Constitution is suused with signicance. Heretofore, it was Congressthat granted COMELEC the power to promulgate rules and regulations, andhence, Congress can withdraw or restrict it by the exercise of its veto orCD Technologies Asia, Inc. 2016

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oversight power. Under the 1987 Constitution, the power to promulgate rulesand regulations has been directly granted by the Constitution and no longer byCongress. Undoubtedly, the power was granted to COMELEC to strengthen itsindependence, hence, its exercise is beyond invasion by Congress. Under anylens, Sections 19 and 25 of Rep. Act No. 9189 constitute undue restrictions onthe constitutional power of the COMELEC to promulgate rules and regulations forsuch rules are made subject to the prior review and approval of Congress. Theimpugned provisions can result in the denial of this constitutionally conferredpower because Congress can veto the rules and regulations the COMELEC haspromulgated. Thus, I respectfully submit that Sections 19 and 25 of Rep. Act No.9189 granting Congress the power to review, revise, amend and approve theimplementing rules and regulations of the COMELEC, otherwise known assubordinate legislations in other countries, are unconstitutional.I now come to Section 17.1 of Rep. Act No. 9189 which provides:Sec. 17. Voting by mail. 17.1. For the May, 2004 elections, the Commission shall authorize votingby mail in not more than three (3) countries, subject to the approval ofthe Congressional Oversight Committee. Voting by mail may be allowed incountries that satisfy the following conditions:(d) Where the mailing system is fairly well-developed and secure toprevent occasion of fraud;(e) Where there exists a technically established identicationsystem that would preclude multiple or proxy voting; and(f) Where the system of reception and custody of mailed ballots inthe embassies, consulates and other foreign serviceestablishments concerned are adequate and well-secured.Thereafter, voting by mail in any country shall be allowed only uponreview and approval of the Joint Oversight Committee. (italics supplied)

From the law itself, it is clear that Congress has already set the necessarystandards to guide the COMELEC in identifying the countries where voting bymail may be allowed, viz: (1) the countries must have a mailing system which isfairly developed and secure to prevent occasion of fraud; (2) there exists atechnically established identication that would preclude multiple or proxyvoting; and (3) where the system of reception and custody of mailed ballots inthe embassies, consulates and other foreign service establishments concernedare adequate and well-secured.

Since the legislative standards have been dened, all that remains is theirenforcement. Our Constitution has specically given the COMELEC the power toenforce and administer all laws and regulations relative to the conduct of anelection. The power is exclusive and it ought to be self-evident that it cannot besubject to review and revision or veto by Congress in the exercise of itsoversight power. Again, the reason for the exclusivity is to insulate COMELECfrom the virus of partisan politics. In the exercise of this exclusive power, theCommission must be accorded considerable latitude. Unless the means andCD Technologies Asia, Inc. 2016

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methods adopted by COMELEC are clearly illegal or constitute grave abuse of

discretion, they should not be interfered with. 238 Thus:There are no ready-made formulas for solving public problems. Time andexperience are necessary to evolve patterns that will serve the ends ofgood government. In the matter of the administration of the laws relativeto the conduct of elections, as well as in the appointment of electioninspectors, we must not by any excessive zeal take away from theCommission on Elections the initiative which by constitutional and legalmandates properly belongs to it. Due regard to the independentcharacter of the Commission, as ordained in the Constitution, requiresthat the power of this court to review the acts of that body should, as ageneral proposition, be used sparingly, but rmly in appropriate cases.We are not satised that the present suit is one of such cases. 239

I join the majority in holding that Section 17.1 of Rep. Act No. 9189 isunconstitutional for it allows Congress to negate the exclusive power of theCOMELEC to administer and enforce election laws and regulations granted by theConstitution itself.This is not to maintain that the Implementing Rules and Regulationspromulgated by the COMELEC, or the system it devised to implement voting bymail cannot be challenged. If they are illegal or constitute grave abuse ofdiscretion, the courts can strike them down in an appropriate case. This power isvested to the courts under Section 1, Article VIII of the Constitution dening thescope of judicial power, and more specically under Section 5, Article VIIIempowering this Court to review, revise, reverse, modify or arm on appeal orcertiorari, "all cases in which the constitutionality or validity of any treaty,international or executive agreement, law, presidential decree, proclamation,order, instruction, ordinance, or regulation is in question." Again, this power isexclusive and is not meant to be shared by any other branch or agency of thegovernment.In sum, it is my humble view that in the case at bar, Congress exceeded thepermissible exercise of its oversight powers for the following reasons: (1) itrestricts the COMELEC's constitutional grant of power to promulgate rules andregulations; and (2) it invades COMELEC's exclusive constitutional domain toenforce and administer all laws and regulations relative to the conduct of anelection, plebiscite, initiative, referendum, and recall.I wish to stress, however, that granting the petition will not invalidate the entireRep. Act No. 9189. It does not also mean that all overseas Filipinos cannot vote.The law aects two classes of overseas Filipinos: (1) those who remain adomiciliary of the Philippines but were absent at the time of the elections eitherbriey or for a long time; and (2) those who are now considered domiciled inforeign countries. To the rst class of overseas Filipinos belong the contractworkers, students, members of the diplomatic corps and their families,businessmen, and the like. To the second class belong Filipinos who areconsidered immigrants or permanent residents of foreign countries. Theconstitutional challenge in the case at bar appertains only to the inclusion of thesecond category of overseas Filipinos in the coverage of Rep. Act No. 9189.Likewise, the challenge on the exercise of Congressional oversight power over theCOMELEC does not taint the core of the law. It merely aects the procedure inCD Technologies Asia, Inc. 2016

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adopting the mechanisms to implement the law. It cannot void the whole law.IN VIEW OF THE FOREGOING, I dissent from the majority's ruling upholding theconstitutionality of Section 5 (d) of Rep. Act No. 9189, which allows animmigrant or a permanent resident of a foreign country to vote for President,Vice-President, Senators and Party-List Representatives after executing therequired adavit. I concur, however, with the majority's ruling upholding theconstitutionality of Section 18.5 of Rep. Act No. 9189 with respect to theauthority given to the COMELEC to proclaim the winning candidates for Senatorsand Party-List Representatives but not as to the power to canvass the votes andproclaim the winning candidates for President and Vice-President. I also concurwith the majority with respect to the unconstitutionality of Sections 17.1, 19and 25 of Rep. Act No. 9189 subjecting the implementation of voting by mail,and the Implementing Rules and Regulations of Rep. Act No. 9189 to bepromulgated by COMELEC, to prior review and approval by Congress.I so vote.YNARES-SANTIAGO, J.: concurring and dissentingR.A. 9189, otherwise known as the Overseas Absentee Voting Act of 2003, hasspurred quite a debate among various sectors of Philippine society, both locallyand abroad. Scholarly arguments on the ne legal points of the issues presentedby this disputed law have been presented by sides both for and against it,saddled, unfortunately, with a heavy dose of bitter emotion.The paramount consideration in any legal debate over this contentious piece oflegislation is its constitutional validity. Signicantly, the short article on suragein the Constitution concentrates on who may exercise the right to vote. 1 TheConstitution underscores three categories on the qualications required of voters citizenship, age and residence. 2 Congress is authorized to limit the number ofcitizens who may exercise the right to vote by prescribing reasonabledisqualications. It is elementary, however, that Congress cannot expand theright of surage by including those who do not possess the constitutionalrequirements. To do so would defeat the very purpose why qualications aresingled out for constitutional attention. The sovereign will has determined thatonly those with the requisite citizenship, age, and residence may vote. Congresscannot water down or change the constitutional requirements.The controversial issue in this case revolves around the constitutional provisionon absentee voting which states:Sec. 2. The Congress shall provide a system for securing the secrecy andsanctity of the ballot as well as a system for absentee voting by qualiedFilipinos abroad. 3

I am constrained to dissent from the majority opinion because R.A. 9189 grantsthe right of surage to a category of voters who do not possess the constitutionalrequirement of residence. These are men and women who are still Filipinocitizens but who have voluntarily and unambiguously chosen actual, physical,and permanent residence in a foreign country. In other words, the questioned lawallows non-residents to vote.As phrased, Section 5 (d) of R.A. 9189 grants to Filipinos who are immigrants orCD Technologies Asia, Inc. 2016

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permanent residents of another country, and who are considered as such by theirhost country, the option to exercise their right of surage. This would beaccomplished by the mere expedient of:1. Registering as voters.2. Execution of an adavit declaring that:a. She shall resume actual physical permanent residence in thePhilippines not later than three (3) years from approvalof her registration;b. She has not applied for citizenship in another country.Proponents of R.A. 9189 are trying to construe Section 2 of Article V of theConstitution as a proviso which expands and enlarges the scope of the precedingsection. They overlook the fact that while Section 2 provides a system forabsentee voting, any absentee who votes must rst meet the qualicationsfound in Section 1 of the same article.As stated by the petitioner, 4 if the framers of the Constitution intended to makeSection 2 of Article V a proviso or exception to its rst section, they should haveadded it to the latter.Section 1 would have incorporated as its last clause the following proviso:Provided, the Congress shall provide a system for absentee voting byFilipino citizens who are residing abroad.

The Constitution does not make the absentee voting provision a mere proviso ofthe rst section on residence qualications. Together with the system whichsecures the secrecy and sanctity of the ballot, the provision on absentee voting isan entirely distinct and separate section which allows only those qualied underSection 1 to take advantage of the privilege under Section 2.The oce of a proviso is to limit the application of a section or provision or toqualify or restrain its generality. 5 However, a proviso may also enlarge whatotherwise is a phrase of limited import had there been no proviso qualifying it. 6Since the provision on absentee voting in R.A. 9189 neither limits nor enlarges aprovision of which it is a part, the phrase "qualied Filipinos abroad" can beinterpreted only to mean that those who are qualied to vote under thepreceding section may become absentee voters. They must possess on electionday the constitutional requirements as to citizenship, age and residence.Proponents of R.A. 9189 try to go around the statute's constitutional inrmity bygiving the word "resident" or "resided" a labored and far-fetched meaning. Theyuse the fanciful interpretation that immigrants who have moved lock, stock, andbarrel to permanently live in another country are still domiciled in thePhilippines.The tens, if not hundreds of millions of overseas Chinese who have migrated toother lands may be cited as examples. Even after living in their countries ofchoice for two or three generations, they maintain their Chinese identitiesthrough clannishness and language. They take pride in the slow emergence ofCD Technologies Asia, Inc. 2016

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the old country into a democratic and powerful economic force in world aairs.By no stretch of legal ction, however, can they be deemed residents ofmainland China. They have chosen to live in adopted homelands, have becomeintegral and, many times, leading members of their communities, and will beburied there when the time comes. Unless the Chinese basic law allows nonresidents to vote in China, they cannot vote there. A similar diaspora caused byeconomic, population, and other pressures has led millions of Filipinos to move toother countries. Considering the constitutional provision on who may vote inPhilippine elections, a distinction has to be made between those temporarilyliving and working abroad and those who have opted to permanently residethere. This Court must hew to reality. It should not engage in fanciful or strainedinterpretations to try to pass o as Philippine residents the more than 2,000,000immigrants who have chosen to permanently reside in other countries. Only aconstitutional amendment, not an enactment of Congress, can lift theconsequences of the distinction.

It is well-settled that in election law, the terms "residence" and "domicile" areused interchangeably. 7 Having in mind the meaning of these terms as they areunderstood in jurisprudence, we can close our eyes and easily conclude that theexercise of the right of surage by Filipinos who are immigrants and permanentresidents abroad is warranted and that the process provided for in R.A. 9189 issound. Unfortunately, such a conclusion would be erroneous."Domicile" denotes a xed permanent residence to which when absent forbusiness or pleasure, or for like reasons, one intends to return. 8 On the otherhand, we have held that the residence of a person must be his personal, actual orphysical habitation or his actual residence or abode. It does not mean xedpermanent residence to which when absent, one has the intention of returning. 9This last, of course, refers to the animus revertendi which is determinative ofdomicile.We must dene another term: immigrant. According to Caasi v. CA, 10 animmigrant is a person who removes into a country for the purpose of permanentresidence. 11 This is why it was held therein that, having taken up suchpermanent residence in a country other than the Philippines, the immigrantabandons his domicile and residence in the Philippines.In its common usage "immigrant" is one who comes to settle in a country whichis not one's own. "Immigration" is entrance into a country for the purpose ofsettling there. "Migrate" means to move from one place of abode to another; toleave one's country to settle in another. 12There is always the concept of permanent movement inherent in the word"immigration." From as early as 1572 to the present, the meaning of "settle" hasbeen to x or establish permanently one's abode, residence, etc. 13Taking these denitions into account, we must now turn to the rst tool we haveto aid us in our quest to understand this vague provision of our fundamental law;the proceedings and debates of the 1986 Constitutional Commission. It can beseen from the records thereof that only Filipino citizens temporarily residingabroad can avail of the option to vote as absentee voters.CD Technologies Asia, Inc. 2016

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With all due respect, it is not accurate to conclude that the debates,interpellations, and opinions on absentee voting expressed in the records of theConstitutional Commission easily and unequivocally show that Congress isempowered to enact a law allowing immigrants to continue to vote in Philippineelections. Much less is there any room for interpretation that an immigrant whomakes the facile promise to return and permanently reside in the Philippines notlater than three years from voting, may be deemed a permanent resident ordomiciled both in this country and in the city or municipality where he will vote.During the deliberations on the subject provision, Commissioner Blas Ople hadthis to say:In a previous hearing of the Committee on Constitutional Commissionsand Agencies, the Chairman of the Commission on Elections, RamonFelipe, said that there was no insuperable obstacle to making eective theright of surage for Filipinos overseas. Those who have adhered to theirFilipino citizenship notwithstanding strong temptations are exposed toembrace a more convenient foreign citizenship. And those who on theirown or under pressure of economic necessity here, nd that they haveto detach themselves from their families to work in other countries withdenite tenures of employment. Many of them are on contractemployment for one, two or three years. They have no intention ofchanging their residence on a permanent basis, but are technicallydisqualied from exercising the right of surage in their countries ofdestination by the residential requirement in Section 1 . . . (Italicssupplied) 14

In response to an interpellation by Commissioner Ople, Commissioner Joaquin

Bernas, S.J., made the following remarks:In other words, "residency" in this provision refers to two residencequalications: "residence" in the Philippines and "residence" in the placewhere he will vote. As far as residence in the Philippines is concerned, theword "residence" means domicile, but as far as residence in the placewhere he will actually cast his ballot is concerned, the meaning seems tobe dierent. He could have domicile somewhere else and yet he is aresident of a place for six months and he is allowed to vote there. So thatthere may be serious constitutional obstacles to absentee voting, unlessthe vote of the person who is absent is a vote which will be considered ascast in the place of his domicile. (Italics supplied) 15

When Commissioner Christian Monsod and several others proposed

amendments, Commissioner Bernas made a clarication as to whom the term"Filipinos" referred to in the draft provision on absentee voting, applies:FR. BERNAS: In other words, these Filipinos must at least be domiciled inthe Philippines.MR. MONSOD: Yes.FR. BERNAS: That is why we do not use the word "ABROAD" becausethey must be domiciled in the Philippines. 16

When the term "absentee voting" was introduced into the provision,Commissioner Florenz Regalado made sure that the provision's intendedCD Technologies Asia, Inc. 2016

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meaning was not lost:

MR. REGALADO: When Commissioner Bengzon asked me to read myproposed amendment, I specically stated that the National Assemblyshall prescribe a system which will enable qualied citizens, temporarilyabsent from the Philippines, to vote. According to Commissioner Monsod,the use of the phrase "absentee voting" already took that into account asits meaning. That is referring to qualied Filipino citizens temporarilyabroad.MR. MONSOD: Yes, we accepted that. I would like to say that with respectto registration we will leave it up to the legislative assembly, for example,to require where the registration is. If it is, say, members of thediplomatic corps who may be continuously abroad for a long time,perhaps, there can be a system of registration in the embassies.However, we do not like to preempt the legislative assembly. (Italicssupplied) 17

Ultimately, the Commissioners' deliberations and debates left little doubt as to

who will be allowed to exercise the option to vote as an absentee voter. We canglean as much from the following exchange:MR. REGALADO: I just want to make a note on the statement ofCommissioner Suarez that this envisions Filipinos residing abroad. Theunderstanding in the amendment is that the Filipino is temporarily abroad.He may not be actually residing abroad; he may just be there on abusiness trip. It just so happens that the day before the elections he hasto y to the United States, so he could not cast his vote. He istemporarily abroad, but not residing there. He stays in a hotel for twodays and comes back. This is not limited only to Filipinos temporarilyresiding abroad. But as long as he is temporarily abroad on the date ofthe elections, then he can fall within the prescription of Congress in thatsituation.MR. SUAREZ: I thank the Commissioner for his further clarication onrecord.MR. MONSOD: Madam President, to clarify what we mean by temporarilyabroad on a treaty traders visa. Therefore, when we talk aboutregistration, it is possible that his residence is in Angeles and he would beable to vote for the candidates in Angeles, but Congress or the Assemblymay provide the procedure for registration, like listing one's name, in aregistry list in the embassy abroad. That is still possible under thissystem. (Italics supplied) 18

To my mind, the Constitutional Commission envisioned two dierent groups of

people as the beneciaries of this provision:1. Qualied Filipinos temporarily residing abroad citizens whobelong to this category reside abroad for extended periods oftime without intending to make their host countries theirpermanent residence. This would include Overseas FilipinoWorkers (OFW's) with xed periods of employment, studentsstudying abroad, holders of treaty trader's visas, or seamenaway from the Philippines for extended periods. TheCD Technologies Asia, Inc. 2016

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Department of Foreign Aairs has tabulated the majority of

the 5,488,167 Filipinos living abroad as falling under thiscategory. 192. Qualied Filipinos temporarily abroad, but not residing therein this contemplates a situation wherein the temporary absencefrom the Philippines is not coupled with any temporaryresidence in a foreign country at all. This would includeFilipinos, who just so happen to be absent from the Philippinesfor brief periods of time, but including election day itself,usually because they have own to foreign countries for shorttrips.It is submitted that a valid and very real distinction exists between either ofthese two groups of Filipinos, on the one hand, and those Filipinos who arepermanent residents or immigrants in their host countries, on the other. The keydierence lies in the change of permanent residence or lack thereof, for theframers of our Constitution clearly intended that Filipinos who had taken uppermanent residence in their host countries would be excluded from the benetsof absentee voting. No other interpretation can be supported by the records athand.It is clear that the Constitutional Commission did not intend to make absenteevoters an exception to the general rule on residence in the exercise of the right ofsurage. We do not agree with the majority's belief that the position of Article V,Section 2 of the Constitution is indicative of an intent to make it appear to be anexception to the residence requirement provided for in the section immediatelypreceding it. As earlier stated, Section 2 is not a proviso of Section 1. Thefollowing discussions are enlightening:MR. SUAREZ: May I just be recognized for a clarication. There are certainqualications for the exercise of the right of surage like having resided inthe Philippines for at least one year and in the place where they proposeto vote for at least six months preceding the election. What is the eectof these mandatory requirements on the matter of the exercise on theright of surage by the absentee voters like Filipinos abroad?

THE PRESIDENT: Would Commissioner Monsod care to answer?

MR. MONSOD: I believe the answer was already given by CommissionerBernas, that the domicile requirements as well as the qualications anddisqualications would be the same.xxx xxx xxxTHE PRESIDENT: Just to clarify, Commissioner Monsod's amendment isonly to provide a system.MR. MONSOD: Yes.THE PRESIDENT: The Commissioner is not stating here that he wantsnew qualications for these absentee voters.MR. MONSOD: That is right. They must have the qualications and noneCD Technologies Asia, Inc. 2016

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of the disqualications.

20

It is patent from the foregoing excerpts that the Commissioners took pains toensure that the reasoning behind Article V, Section 2 of the Constitution wouldnot be misunderstood. They never intended to accord a special status nor givespecial consideration to Filipinos who have become permanent residents of theirhost countries. These necessarily include immigrants.Juxtaposing these denitions found in our jurisprudence with the evident intentof the framers of our Constitution, it is plain to see that Section 5 (d) of R.A.9189, in its current form is unconstitutional. It seeks to grant the benets ofabsentee voting to those for whom it was never intended: Filipinos who arepermanent residents, necessarily including immigrants, of countries other thantheir own.The majority claims that striking down Section 5 (d) of R.A. 9189 would depriveFilipinos abroad of a very important choice. On the one hand, they can waivetheir right to vote and continue to enjoy their status as immigrants orpermanent residents of their host country. On the other, they can manifest theirintent to return to the Philippines in a sworn statement within 3 years from theapproval of their registration as absentee voters. This is, of course, a superuousexercise. What needs to be decided? "These immigrants and permanent residentof their host countries have already made their choice. They decided to move onto "greener pastures" rather than to cast their lot here with their countrymen.The long lines of applicants patiently and meekly waiting for months or years tobe granted immigrant visas by foreign embassies is strongly indicative of theirdetermination to permanently reside abroad. Granted, they had very goodreasons, even downright pressing or urgent ones, to leave their homes for cold,far-o lands. However, they made their choices willingly and, undoubtedly, withfull knowledge that they sacrice some of their rights and privileges as citizensand residents of our republic.We know all too well the sacrices our overseas brothers and sisters haveendured to make better lives for themselves and their families, and if they arehappy where they are, then we are genuinely happy for them. The sincerity oftheir concern for the motherland, as well as the nobility of their sentiments,have never been in question. However, if they feel they have to manifest suchconcern for the welfare of their country by casting their votes in our country'selections, then they should do what the Constitution commands. They shouldcome home.I also take issue with the majority's claim that the threat of disenfranchisementwill be a sucient deterrent against the possibility of any absentee voterreneging on his promise to return to the Philippines within 3 years fromregistration as an absentee voter. However, as I mentioned above, is it notconceivable that these immigrants or permanent residents of their host countriesknew fully well that they would never again be able to exercise the right ofsurage when they sought permanent residence abroad? If they were willing tosacrice the exercise of this right then, what is to stop them from doing so in thefuture? Not much, for if they register as absentee voters and participate in ourelectoral process, they have nothing to lose. They can decide to hold true to theiroath and come home to permanently reside here within three years of theirCD Technologies Asia, Inc. 2016

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registration as absentee voters. Alternatively, they can vote during the electionsand never set foot on Philippine soil ever again. What will they lose by exercisingthis second option? They risk losing the right to vote in Philippine elections; aright which they forfeited a long time ago.It is unfortunate that R.A. 9189, in its present form, is saddled with so manyinrmities. Sadder still is the fact these problems could have been avoided at thedrafting stage. Evidently, these issues were brought to the attention of theSenate by Senator Joker Arroyo, as far back as the period for committeeamendments. Although the eminent Senator's remarks were originally inresponse to the proposal to provide for voter registration by mail, his partingwords on the subject for his colleagues in the Senate capture the true intentbehind the Constitutional provision on absentee voting. Fortunately, the Recordof Senate has chronicled them for posterity, thus:Now my concern here is this; that while we would like absentee voting, wedo not want the process to be used by some enterprising people to alterthe vote. What am I trying to say? All our compatriots abroad, well, theycannot be bought. They will vote honestly. The question is, just like here,after casting their votes, will the results be honest and reective of thehonest vote made by the absentee voters? That is really the question.xxx xxx xxxIn our over-eagerness to follow the Constitutional provision, we nd gapsin the process. So I agree with Senator Angara when I say that theregistration must be here, they must rst register, and it is not really thatdicult because they come home every now and then. These are Filipinoswho come every now and then. But for Filipinos, for instance, who havelived 20 years abroad, is that dicult to gure out?Must we really solicit and ask them to vote when they have lived therealready for 20 years? We have dual citizenship. While we grant them thedual citizenship, ne. But for a person who has been there for 20 yearsand has not even come back here, that is too much.It is like that. How can we grant the right to vote to those who do notcare to come home and visit? Come home and visit, then they get theright to vote. But if they do not even visit and then they will say they willle their application to vote, having grown up all these years in the UnitedStates, how is that? I mean, these are the things that we have toconsider because I, for one, cannot go against the Constitutionalcommand because that is what the Constitution says we must providefor absentee voting.So, the proposition that I have oered is that when they come home, it isvery easy. They just go up to the election registrar; they register there.They do not even have to ask so many questions. But at least, they arethumbmarked, their signatures are there, then the details are there.These are the things. Because, Mr. President, if some of our overseasbrothers commit election crimes abroad, they cannot be prosecuted inthe Philippines. Let us face that. Why? Because all they have to do is notcome home. Then we will have another Mark Jimenez, perhaps, I do notknow. But when they come here and register, there is a certainCD Technologies Asia, Inc. 2016

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attachment to us, and it is not too dicult.

Look at our overseas workers, for instance, in the Middle East. Everyday,we go to the airport and we see their groups of overseas workers cominghome.So, all we are telling them is: "All right, you go to your respective towns.When you go there, just spend 15 minutes."Mr. President, if these overseas workers or compatriots of ours do notwant to go there and spend 15 minutes, how can we give them the rightto vote? I mean, there must also be some external manifestation on thepart of our overseas friends that they do want to vote. And they do sobecause they take time, they take pains to register. If they do not want totake time and pains to register, they just say: "Oh, no. We give youmoney there, so you better give us the ballots." I mean, it is not fair.What we want is to fashion a bill that would also show that the overseasvoter has some attachment to the Philippines. (Italics supplied). 21

Jurisprudence has developed the concepts of "residence" and "domicile" in

situations where the two are in dierent places but both are within thePhilippines. 22 A young man leaves his hometown to study in the city. He sets upa residence for education purposes. When he gets married and raises a family, hemay build his residence in another place. His work may take him to dierentplaces and he establishes a new residence each time he and his family move. Hemay have cast his vote in any of the various places where he has resided.However, in later life he decides to run for public oce in his hometown wherehe has not resided for forty (40) years. His hometown is still deemed to be hisdomicile or permanent residence. The key element in determining one's domicileor permanent residence is the declared and provable or easily proved intent tomake it one's xed and permanent place of abode or home. 23For immigrants, the manifest intent is the will, animus, volition, plan, andintendment to establish permanent residence in another country. The process aman goes through before he is given immigrant status is so arduous andformidable that there can be no doubt as to his animus. The fact that he isleaving the Philippines, with all the emotional connotations of departure, tosettle in another country proves intent. Far from returning to the Philippines, hismore likely and provable intent is a desire to eventually get citizenship papers inhis adopted country.Conversely, the cases where Filipinos may have resided in foreign countries butwhose domicile was still somewhere in the Philippines clearly show not only theintent to return home, but the likelihood or inevitably of having to come homeand not stay permanently in any adopted country.

The decisions in Philip G. Romualdez v. Regional Trial Court, et al. 24 and ImeldaRomualdez-Marcos v. Commission on Elections, et al. 25 illustrate the distinctionbetween temporary residence in a foreign country and domicile in one'shomeland.The petitioners in the Romualdez cases never chose to be residents in the UnitedCD Technologies Asia, Inc. 2016

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States. They were forced to ee because of the political upheaval known as EDSA1. Philip Romualdez tried to return around one year after his forced ight abroad.He had already booked a ight but it was aborted because he was not welcomeat that time in the Philippines. On September 25, 1991, he received a letter fromthe U.S. Immigration and Naturalization Service that he must leave that countryon or before August 23, 1992 or be deported. The concepts of residence, domicileand animus manendi coupled with animus non revertendi are discussed in thesecases, but there can be no mistaking the facts of the cases as entirely dierentfrom those of immigrants.Mrs. Marcos and her family were also forced to ee. Throughout their residenceabroad, they strove to return to the Philippines. They led a case against theSecretary of Foreign Aairs, the Executive Secretary and other top ocials tocompel the issuance of new passports and permission to come home. 26The rulings on domicile and residence in the above and similar cases cannot beused to justify the validity of R.A. 9189. They do not refer to immigrants.I also disagree with the majority view that perhaps it is time to reconsider thedoctrine in Caasi v. Court of Appeals 27 and reverse it. It is sound doctrine andshould be strengthened instead of being overturned.I beg to dier from the conclusion in the majority opinion which states that anabsentee remains attached to his residence in the Philippines because"residence" is synonymous with "domicile.""Absentee" has to be qualied. It refers only to those people residing abroadwhose intent to return home and forsake the foreign country is clear. It cannotrefer to immigrants. A mere promise to return home within three years fromvoting is no proof of intent to return to a permanent residence. The sanction forits enforcement is so feeble that the promise will be an empty one. As earlierstated, an immigrant gives up many things, including the right or opportunity ofvoting in the Philippines, when he moves with his family abroad. A sanction offuture disenfranchisement would not bother him in the least bit. In themeantime, the immigrant vote in closely contested cases may have elected thePresident, a Senator or a Congressman. Unqualied voters will have swung theelections. In the same way that a counterfeit coin drives away or results in thehoarding of genuine or good coins, 28 the votes of non-qualied persons will notonly weaken or nullify the value of the good votes but may make an electionitself sham and meaningless.The majority opinion cites the case of Romualdez-Marcos v. COMELEC 29 as anexample of an absentee abroad whose permanent residence is her hometown inLeyte. Mrs. Marcos never chose to live abroad. She was compelled by overpowering circumstances to ee to Hawaii. She and her family showed clearly theintent to return home. Her case would be the weakest precedent for allowingimmigrants to vote in the Philippines. She was not an immigrant.With all due respect, the argument voiced in Congress that the adavit-promiseto return home within three years gives the immigrant that choice withoutCongress making the decision for him is deceptive and unsound. As earlier stated,the immigrant has already made his choice to change domicile when hemigrated abroad. If he later returns to the Philippines, the choice is an entirelyCD Technologies Asia, Inc. 2016

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new one. It assumes force and eect only when the immigrant actually comesback home, tears up his green card and sets up domicile anew in the Philippines.However, I agree with the majority opinion that certain provisions of R.A. 9189are unconstitutional, to wit:1. Section 17.1 of R.A. 9189, insofar as it provides that voting by mail shall besubject to the review and approval of the Joint Congressional OversightCommittee.2. Section 18.5 of R.A. 9189, insofar as it empowers COMELEC to order theproclamation of the winning candidates for President and Vice-President wheredelays in the canvass of overseas votes will not aect the results of the election,considering that only Congress can proclaim the winning President and VicePresident. 303. Sections 19 and 25 of R.A. 9189, insofar as they provide that theImplementing Rules and Regulations to be issued by the COMELEC are subject tothe review, revision, amendment and approval of the Joint CongressionalOversight Committee.I have discussed at length the invalidity of the provision which converts adisqualied immigrant into a qualied overseas voter by the simple expedient ofexecuting an adavit promising to return to the Philippines within three yearsfrom voting. It is beyond comprehension how a mere promise of a future act,which is more likely to be violated than obeyed, transforms a disqualication intoa qualication.Ascertaining, after three years, who complied with the promise and who violatedit presents an administrative nightmare. I submit that the valid system is toallow overseas voting only for those Filipinos who have to return home or mostprobably return home because of the nature of their work abroad.In the debates over specic provisions of R.A. 9189, we tend to overlook that theentire law has been hurriedly drafted in a form which violates the principalmandate of the Constitution on surage. The sovereign people have orderedCongress to provide a system which secures the sanctity and secrecy of theballot. 31 Instead of securing the sanctity and secrecy of the ballot, R.A. 9189does the opposite.The unconstitutional sections of the law have been discussed at length. Themajority opinion calls for a "holistic" view of the law.Careful observers of R.A. 9189 indicate that such a "holistic" view strengthensthe invalid and highly unrealistic aspects of the entire statute. 32 It does notmake sense and it is highly improbable that permanent residents abroad will visitour embassies to execute adavits promising to return here simply to exercisethe right to vote in absentia in Philippine elections.How will our embassies and consulates in the one hundred seventy eight (178)countries, island nations, and city states in the DFA list comply with their electionduties within the impossibly short period provided by the law. 33How will the identities of millions of overseas Filipinos be ascertained, thetemporary separated from permanent residents, their passports be examined,

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and their adavits of promise to return be veried and transmitted to the

thousands of precincts where the sanctions on violated promises have to beenforced. How can embassies and consulates publicize the requirements forregistration at least six months before October 31, 2003 in the one hundredseventy eight (178) countries, island nations, and city states where overseasFilipinos are found? 34 How can they conduct exclusion and inclusion proceedings?Despite all-out eorts of COMELEC, it has not solved the serious problem ofdagdag bawas within the Philippines. Under the loose provisions of R.A. 9189,dagdag bawas is encouraged without fear of discovery, correction, andpunishment of guilty parties residing abroad.A new and entirely ecient system for ferreting out and punishing electionoenses must go with the law. Only a few obvious oenses have to be cited.Among them are padded registration lists, accreditation of unqualied voters,vote-buying and vote-selling, bribery, wagering on the results of elections, doubleregistration and multiple voting by one person, appreciation of torn, defaced, orinvalid ballots, solicitation of votes and unlawful electioneering, rigging ortampering with the canvass and transmission of results, and a long list of otherviolations of election laws.As observed by Professor Belinda A. Aquino, 35 "to rush this experiment simply tokeep up with the May 2003 elections, with some political calculations of itsadvantages to certain candidates would be creating a disservice to t